Review of "When in the Course of Human Events: Arguing the Case for Southern Secession," by Charles Adams

Book review: When in the Course of Human Events: Arguing the Case for Southern Secession, by Charles Adams.

"You must not tell the truth if it hurts a national hero." - Anonymous commentator, cited in The Last Place on Earth, by Roland Huntford.

Did you know...

- That Abraham Lincoln, in his first inaugural address, stated his support for the Corwin Amendment, which had just passed Congress, and which would have guaranteed the existence of slavery in perpetuity as an 'unamendable amendment' to the United States Constitution?

- That, at the start of the war in 1861, Congress passed a resolution stating that the war "is not waged on our part...for interfering with the rights, or established institutions of these [the Confederate] States"...meaning slavery?

- That Abraham Lincoln actually countermanded emancipation orders issued by Union General Fremont in Missouri early in the war on the basis that "It was a war for a great national idea, the Union" and that "General Fremont should not have dragged the Negro into it"?

- That Lincoln wrote to Horace Greeley (a prominent abolitionist and editor of the New York Tribune) stating that, "If I could save the Union without freeing any slave, I would do it"?

- That Lincoln's Emancipation Proclamation freed only those slaves in areas of the Confederate States that were not controlled by Union armies, but left those in occupied territory and border states in slavery?

- That Congress, devoid of any representatives from the Confederate States, did not pass an amendment to outlaw slavery until December of 1865, months after Lincoln was dead and the war was over?

All of the above are facts, and yet few Americans are aware of them. Why? For that simple reason that, since the end of the war in 1865, a concerted effort has been made to present Abraham Lincoln and his comrades in Union blue as humanitarian crusaders bent on achieving the equality referenced in the Declaration of Independence.

Nothing could be further from the truth. Lincoln himself stated many times that he was not in favor of equality between the races, a fact underscored by his participation in the American Colonization Society: an organization dedicated to relocating American blacks to such places as Africa and South America - anywhere but the United States. Had Lincoln and his Republican colleagues pushed for racial equality, the GOP would have died in its infancy. Lincoln himself admitted in 1858 that the vast majority of Americans (including himself) strongly opposed the idea.

Nevertheless, the modern image of Lincoln as a 19th Moses leading slaves out of bondage should not surprise us. All throughout human history, the factions that have won wars have done their best to present themselves in the best light possible, while simultaneously denigrating their enemies. They do this for two primary reasons: 1) to morally justify the enormous loss of life and destruction that wars cause, and 2) so that future generations will embrace them as heroes and accept their vision of the world. Sometimes, what they have to say is true; sometimes it is not. It is up to us to look back into the past, weigh the facts for ourselves, and decide where the virtue and blame truly lie in the history of any given conflict.

For those interested in the American war of 1861-1865, Charles Adams' book When in the Course of Human Events: Arguing the Case for Southern Secession should, along with the works of men such as Thomas DiLorenzo and Clyde Wilson, be considered 'equal time for the other side'. As such, I believe it is well worth your time and careful consideration.

"The thesis that the solid South seceded to protect slavery just does not make sense," writes Adams:

"The institution of slavery had never been more secure for the slave owners, with the Supreme Court in their back pocket; with the Constitution itself expressly protecting slavery and mandating the return of fugitive slaves everywhere -- a mandate Lincoln said he would enforce; with Lincoln also declaring that he had no right to interfere with slavery and no personal inclination to do so; with Lincoln personally supporting a new constitutional amendment protecting slavery forever -- an amendment expressly made irrevocable."

Indeed, rather than slavery, Adams argues that the war between North and South had more to do with taxation and competing economic interests; and he supports this assertion with an impressive variety of facts. Of particular interest here is that Adams quotes extensively from European sources, including newspaper accounts and the perspectives of such well-known figures as Charles Dickens and Karl Marx. Of all the books I have read on this subject, none weigh the international opinion so frankly and heavily as Adams does for us here. He also takes time to investigate the history of secession and to compare and contrast the ideology of the American Revolution with that of Lincoln and his Northern war partners. Again, the European perspective is evaluated, and we are treated to such thought-provoking quotes as the following from England's Cornhill Magazine: "With what pretence of fairness, it is said, can you Americans object to the secession of the Southern States when your nation was founded on secession from the British Empire?"

The only real words of criticism that I have for Adams is that I believe he downplays the role of slavery too much when he evaluates the causes of secession. He is absolutely correct in maintaining that the war was not fought over the question of slavery, but that does not mean that it played no role whatsoever in the events leading up to the war. There are prominent references to slavery in several of the secession ordinances of the Southern states; and while Adams would maintain that those references represent so much political posturing, I disagree. Although few Southerners actually owned slaves, slavery itself was an essential element of the Deep South economy, and an important aspect of the overall social fabric of 19th Century America (even many in the Northern states had no desire to see slavery end, as it might mean that freed blacks could move north). Thus, there were very real concerns regarding the institution and how Lincoln and his "Black Republicans" might interfere with it. Adams points out that Lincoln had promised not to interfere with it, but he forgets that Southerners trusted Lincoln about as far as they could throw him. I think Adams might have tackled the issue more successfully had he focused on the fact that, while several Southern states did mention slavery prominently in their ordinances of secession, the majority of their comments on the issue focused on sectional feeling (the "sectional, anti-slavery party in Washington," as South Carolina put it) and slavery's economic importance to the South (see Mississippi's ordinance). These factors tie back into his main thesis, while acknowledging that slavery did play a role in the secessions of the first seven Southern states to leave the Union (the latter four states seceded because of Lincoln's call for troops to be used against the first seven seceded states). Southerners simply had no desire to be dictated to, not on any issue; and they seceded when they became convinced that Northern interests had taken over the federal government, and that their best hope for protecting their interests lay outside the Union.

The 200th anniversary of Abraham Lincoln's birth will be upon us in less than two years, and between now and then we will undoubtedly be subjected to a barrage of the usual Abe Lincoln-as-messiah-and-patriot-extraordinaire mythology. Swallow it if you will; but for those of you who are interested in the candid, and often downright ugly, truth about America's 16th president and its most disastrous conflict, I cannot recommend "When in the Course of Human Events" highly enough. My quibbles with him aside, Adams presents his evidence and conclusions in such a even-handed, scholarly and compelling manner that only the most ardent Lincoln admirers will be able to put the book down and walk away unaffected by it.

Also recommended in the 'equal time' department: The Real Lincoln and Lincoln Unmasked, both by Thomas DiLorenzo; Is Davis a Traitor? by Albert Taylor Bledsoe; The Rise and Fall of the Confederate Government, by Jefferson Davis; From Union to Empire: Essays in the Jeffersonian Tradition, by Clyde Wilson and Joseph Stromberg; A Constitutional View of the Late War Between the States, by Alexander H. Stephens; and One Nation, Indivisible? A Study of Secession and the Constitution, by yours-truly.

Nullification Revisited

(Originally published in two parts during the month of March, 2007 - I'm posting past articles before adding new material)

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. - James Madison, Federalist 45

Recent debates over sweeping new federal laws have re-ignited old quarrels concerning the proper constitutional role of the federal government and the rights and reserved powers of the states. As a case-in-point, on February 1, 2007, the Montana State House of Representatives unanimously passed two bills condemning the federal REAL ID Act as an improper use of federal legislative power. Both bills were designed to exempt Montana from the Act; however, the bill introduced by Representative Diane Rice of Harrison, Montana, went a step further, stipulating that, "the legislature of the state of Montana hereby nullifies the REAL ID Act of 2005, as it would apply in this state".

Read that again: "The legislature of the state of Montana hereby nullifies the REAL ID Act". Nullifies. Hmmm, there's a word we haven't seen in awhile, and with good reason. You see, the word "nullify” – like its conceptual kissing cousins "secession," "states rights," "delegated powers," and sometimes even "Constitution" – belongs to a special class of political four-letter words, so called for the reason that they are verboten in polite conversation amongst the political mainstream. In that parlance, they are akin to the type of words that self-conscious adults tend to spell-out in front of small children so as to avoid embarrassment, and are allowed to be spoken only in a historical context, and only when accompanied by an obviously derisive tone of voice.

For this reason it's understandable that the use of this little three-syllable word "nullify" will make some people skittish. Like a hand-grenade, the word is small but loaded with explosive potential, enough even to cow some otherwise hardy and ruggedly individualistic Montanans. According to Missoulanews.com, Hal Harper, an advisor to Montana governor Brian Schweitzer, downplayed the significance of the word 'nullify' when commenting on Diane Rice's bill, stating that it "is simply a synonym for 'repeal' and carries little significance beyond demanding that the federal government reverse its law." Technically, what Harper says is true; the word "nullify" can be used as a synonym for "repeal," although that is not its primary meaning, and its use in this context is rather dubious. To see what I mean, try using 'repeals' in place of 'nullifies' in the sentence that I quoted from Ms. Rice's bill. When you do this, you get: "the legislature of the state of Montana hereby repeals the REAL ID Act of 2005." Nope, I'm sorry, Hal, but this doesn't work. Montana didn't pass the REAL ID Act, so it can't very well repeal it; and nowhere in Ms. Rice's bill do I see any call for the federal government to "reverse its law". The bill simply states that the REAL ID Act "is inimical to the security and well-being of the people of Montana, will cause unneeded expense and inconvenience to those people, and was adopted by the U.S. congress in violation of the principles of federalism contained in the 10th amendment to the U.S. constitution," and that the state "nullifies" it "as it would apply in this state."

This language seems pretty clear to me. Ms. Rice's bill says that Montana doesn't like the REAL ID Act, doesn't think it's constitutionally sound, and won't have anything to do with it. End of story.

But a state can't do that...can it?

Most of us have been taught the idea that nullification, like secession, is unconstitutional; and further, that it is a discredited political doctrine. The federal government is absolutely supreme, thus the states are subordinate entities that must obey federal edicts – this is the reigning dogma in American politics, and one of the pernicious ideas that the elites are laboring to teach to school children. If you ask for proof, the supporters of this dogma (generally federal officials and those who benefit from the favor of same - surprise, surprise) will usually throw a quote from Abe Lincoln at you and tell you that ideas like nullification and secession died at Appomattox, Virginia in 1865. Why? Well, because that's the place where Lincoln and those who supported his authoritarian ideals finally wore down those who disagreed, and forced their surrender on the battlefield. Thus, nullification and secession are 'discredited' political doctrines largely for the same reason that your claim to your wallet can be 'discredited' by a mugger in an alley. Ask Rush Limbaugh if you don't believe me. "Might makes right" is the most sophisticated reason an authoritarian needs to do anything, although the idea tends to sell better if he wraps it in Old Glory and calls it "patriotism," while simultaneously demonizing his opposition as "anarchists" and/or "anti-American."

However, others of a less philosophically rigid sort understand that physical force cannot discredit an idea, and it is for their benefit that I offer the following discussion:

What is Nullification?

From the Random House Unabridged Dictionary:

Nullify - (verb)

1. to render or declare legally void or inoperative: to nullify a contract.
2. to deprive (something) of value or effectiveness; make futile or of no consequence.

Thus, when a state 'nullifies' a federal law, it is proclaiming that the law in question is void and inoperative, or 'non-effective', within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

A Short History of Nullification

Nullification has a long and interesting history in American politics, and originates in the Virginia and Kentucky Resolutions of 1798. These resolutions, secretly authored by Thomas Jefferson and James Madison, asserted that states, as sovereign entities, could judge for themselves whether the federal government had overstepped its constitutional bounds, to the point of ignoring federal laws. Virginia and Kentucky passed the resolutions in response to the federal Alien and Sedition Acts, which provided, in part, for the prosecution of anyone who criticized Congress or the President of the United States. Other instances followed, most famously in 1833, when South Carolina nullified the federal Tariff of 1828, which it deemed to be unconstitutional because it was specifically a protective tariff, not a revenue tariff. This act of nullification created a conflict between South Carolina and President Andrew Jackson, and nearly led to war before a compromise tariff was adopted. And lest it be assumed that nullification and state sovereignty were political doctrines unique to the Southern states, it should also be noted that there were times when the Northern states also asserted them (in particular, see the Hartford Convention of 1814 and the various "personal liberty laws" that Northerners enacted in defiance of federal fugitive slave laws).

And now, with that short introduction out of the way, let's get to the meat of the issue.

Is Nullification Constitutional? Compact Theorists versus Nationalists

In his opposition to South Carolina's decision to nullify the Tariff of 1828, Andrew Jackson denounced the idea that a state could "annul a law of the United States," arguing that nullification was "incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed." Senator Daniel Webster of Massachusetts agreed with Jackson in 1833, as did Abraham Lincoln in 1861. These men were nationalists. They believed that the Constitution of the United States had formed a consolidated nation-state, not a confederation, and thus they held to the idea that the Union was sovereign over the states. They also believed that the Constitution had been established among the "people of the United States" in the aggregate sense, not amongst the states themselves, and thus it was not a compact (or agreement) as the Jeffersonians contended.

As you can see, there are some intricate issues involved here, and I cannot possibly use the short space available in this article to do them all proper justice; however, I will do my best to summarize the main points in contention and provide some clear answers. I will do so by addressing the main points of those who oppose nullification and what is called the Compact Theory of the Constitution in favor of the consolidated nation-state idea. Those who are interested in a more thorough treatment of these issues (and the issues in contention during the war of 1861-1865) may wish to refer to my book, One Nation, Indivisible? A Study of Secession and the Constitution, among other works such as: When in the Course of Human Events: Arguing the Case for Southern Secession, by Charles Adams; Was Jefferson Davis Right? by Ronald and Walter Kennedy; and The Real Lincoln and Lincoln Unmasked, by Thomas DiLorenzo.

Is the Union a Consolidated Nation-state, or a Confederation of States?

Those who favor the consolidated nation-state school have some serious problems to overcome, problems that go all the way back to the colonial era. To begin with, in spite of certain claims made by men like Webster and Lincoln to the effect that the American Union actually began in colonial times, the thirteen British colonies that eventually became the American states were always separate political entities. Certain attempts were made to institute a common government over them, but these plans were defeated by differences arising between the colonies and, further, by interference from Great Britain. Their strongest, pre-independence connection was their status as British subjects, and thus their mutual allegiance to the British crown. Nor did the Declaration of Independence create an American nation. Indeed, the Declaration merely established that "these United Colonies are, and of right ought to be free and independent states." The colonists made no declaration establishing a Union of any type amongst themselves; they merely announced that they were united in their determination to be free of the British crown. During the Constitutional Convention in 1787, delegate Luther Martin spoke to the truth of this when he said: "At the separation from the British Empire, the people of America preferred the establishment of themselves into thirteen separate sovereignties, instead of incorporating themselves into one."

Following the Declaration, the new American states began working on a plan of Union, a fact which, by itself, should establish that no such thing existed at the time. Thomas Jefferson recorded in his Autobiography that, "All men admit that a confederacy is necessary. Should the idea get abroad that there is likely to be no union among us, it will damp the minds of the people, diminish our struggle, and lessen its importance..." The plan of Union that finally emerged: the Articles of Confederation, required the agreement of every state to become effective, and so did not go into formal operation until March of 1781, when Maryland became the thirteenth state to ratify the document. Thus, the true birthday of the United States of America as a country is March 1, 1781, not July 1, 1776.

The Articles of Confederation were a political compact and established a Union of States, as even Daniel Webster later admitted. They declared outright that, "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressely delegated to the United States." Make note of the mention of sovereignty here, as being applied to the states; this will be important later in addressing nullification specifically.

In 1788, a convention called to repair defects with the Articles tossed its mandate aside and drafted a new Constitution, which was then presented to the states for ratification. Unlike the Articles, which had been ratified by the legislatures of the states (Rhode Island excepted), the Constitution was to be ratified by the people of each state via conventions called in each for that purpose. Also unlike the Articles, the Constitution was to become effective when ratified by nine states, but, as per its own language, it would be active only "between the states so ratifying the same" (see Article VII). In other words, the Constitution was to be binding only upon those states that agreed to it. As a result, when New Hampshire became the ninth state to ratify the Constitution in 1788, the Union was effectively broken up; Virginia, New York, North Carolina and Rhode Island had not ratified, and thus were no longer politically united with the other nine states. James Madison testified to this fact in comments he made to Congress on June 8, 1790, concerning North Carolina and Rhode Island, neither of which had ratified the Constitution by that time: "I allude in a particular manner to those two states who have not thought fit to throw themselves into the bosom of the confederacy: it is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible."

Like the Articles of Confederation, the new Constitution was also a compact between the ratifying states, as the language of Article VII (specifically the words, "between the states") demonstrates for us. Patrick Henry, speaking in Virginia's ratification convention, argued that it was actually a consolidated national form of government because it referred to ratification by "the people of the United States"; however, James Madison countered that idea. "Who are the parties to it?" asked Madison, "the people – but not the people as composing one great body – but the people as composing thirteen sovereignties." As evidence of this, Madison pointed to the fact that each state was ratifying the Constitution for itself, whereas, had it been a truly national endeavor, a binding ratification vote would have been taken among the American people as a whole. Those who crafted the Constitution, Madison included, had in fact considered a "national government...consisting of a supreme legislative, judiciary, and executive," but the plan had been rejected, and the word 'national' had been stricken from every resolution presented to the constitutional convention from that time forward. The founders, including that rascal Alexander Hamilton, repeatedly referred to the Constitution as a "compact" to which the states had "acceded" (agreed to join) and the new Union as a "confederacy" and a "confederate republic." The fact it was not to be a confederation along the same lines as had existed under the Articles did not diminish the fact that the new Union was still a form of confederation. As Hamilton stated during the constitutional convention: "Different confederacies have different powers, and exercise them in different ways...great latitude, therefore, must be given to the signification of the term."

Sovereignty and State Powers within the Union

Those who reject doctrines such as nullification and secession often point to the "Supremacy Clause" in Article VI of the Constitution, where we read: "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 not withstanding." Nationalists frequently use this clause to argue that the federal government is supreme over the states in every way; however, this is an error, one that can be corrected readily enough by reading the clause again without wearing authoritarian goggles. The clause states that the Constitution and all laws made pursuant to it, are supreme, not the federal government itself or any law it passes at whim.

The powers of the federal government are, as the Constitution itself clearly states, "delegated," not inherent. In ratifying the Constitution, the states agreed to give up the exercise of certain sovereign powers (such as the power to declare war) in favor of having those powers exercised by the Union on behalf of all the states. All other rights and powers were to be retained by the states (see Amendments 9 and 10). This arrangement made the federal government a sort of agent of the states, authorizing it to act on their behalf in certain ways, while, at the same time, making it possible for the states to manage their internal affairs as they saw fit, and to peacefully interact with one another and with the nations of the world. Alexander Hamilton remarked on this state of affairs as follows in Federalists 32 and 33 respectively:

An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.

And...

But it will not follow from this doctrine [the 'supremacy' provision of Article VI] that acts of the larger 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…only declares a truth which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution...

These concepts were echoed by Thomas Jefferson and James Madison in the Kentucky and Virginia Resolutions of 1798:

Kentucky Resolution: "The several States composing the United States of America, are not united on the principle of unlimited submission to their General Government but that, by a compact under the style and title of a Constitution for the United States…that to this compact each State acceded as a State…that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself… 

Virginia Resolution: "RESOLVED…That this Assembly most solemnly declares a warm attachment to the Union of the States…That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties; as limited by the plain sense and intention of the instrument constituting that compact…"

A Constitutional Right to Resist

It follows logically that if a government is empowered to do only certain things, and is forbidden from doing anything else, that any attempts made by that government to reach beyond the scope of its rightful powers are illegitimate. Laws enacted on that basis are, therefore, not laws at all, but are "acts of usurpation," as Alexander Hamilton phrased it. It also follows logically that if a state has rights and powers that are reserved for its exclusive use, it must also possess the natural right to defend those rights and powers. This is the underlying justification for nullification. It is, in essence, an act of self defense on the part of a state, whereby it seeks to protect its reserved rights and powers from being overthrown by a usurper, and is, contrary to the ravings of the nationalists, both logically, morally, and constitutionally consistent. States are required to yield to federal authority only in those instances where the Constitution clearly states that such-and-such falls within the federal realm, such as the power to declare war, make treaties, etc. In all other instances (save only if the Constitution specifically forbids them from doing something) they are free to act as they please.

In light of this, Andrew Jackson's assertion that nullification is "incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed," is 180 degrees south of the truth. Nullification is entirely compatible with the existence of the Union because it finds its justification on the very foundation of the Union: the related principles of delegated authority and the separation of powers. It is not contradicted by the letter of the Constitution, in either an express or implied manner; however, federal usurpation is expressly prohibited by Amendments 9 and 10, and also by Article VI, which requires that all federal and state legislators, executives and judges pledge to uphold the Constitution (including its limited grants of power) by "oath or affirmation". It is absolutely authorized by the Constitution's "spirit," which rests in respect for the law and the separation of powers, and is perfectly consistent with every principle upon which the Constitution was founded. The "great object" for which the Union was formed was, in the words of James Madison (see Federalist 14), to serve as:

Our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the old world, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments...

Nullification - a state exercising its natural right to self-defense in protecting its reserved rights and powers - is not destructive of any of these things that Madison mentioned, but usurpation certainly is destructive of those ends, as we have seen illustrated time and time again throughout our history. Usurper presidents (most notably Abraham Lincoln) have killed more than half a million Americans in undeclared wars and other "police actions" and "peace-keeping missions," none of which are constitutionally authorized. Unconstitutional acts of Congress and activist courts have severely restricted our commerce and polluted our common interests with partisan, political corruption, thus exacerbating the very "diseases of faction" that Madison and others feared. And as for those "military establishments which have subverted the liberties of the old world," we are starting to see this now as well, as federal paramilitary raids increase against the civilian population (sometimes in defiance of state laws), and as the current government seems determined to employ military forces in future domestic "crisis" situations, with or without state cooperation and permission.

Responses to Two Common Objections

What about the Courts?

Some of you who read this article will inevitably ask: "What about the federal courts? Aren't they supposed to determine the constitutionality of a law or a given action?" Over time, nationalists -- thanks primarily to Chief Justice John Marshall's decisions early in the country's history -- have been very successful at planting the idea in the American mindset that our federal courts are the final arbiters of any and all constitutional issues, but there is actually no constitutional justification for this notion. Indeed, it may surprise you to learn that, in Federalist 81, Alexander Hamilton remarked that there is "not a syllable in the plan under consideration [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution."

The role of the federal courts and the final determination of constitutional issues in dispute is, in my opinion, the Constitution's greatest failing. Article III empowers the United States Supreme Court with legitimate authority over all "cases in law and equity arising under this Constitution," and Article VI states that the Constitution is the "supreme Law of the Land…any Thing in the Constitution or Laws of any State to the Contrary not with-standing." As a result, it follows that the Court should have authority to rule in situations where violations of some clear constitutional provision are alleged to have occurred. However, what if the question before the court is not how the Constitution applies to a given matter, but if the Constitution applies to it at all? Or what if a verdict of the court introduces some new doctrine, and thus somehow changes the fundamental relationship of the federal government to the states and individual Americans? Now the question has undergone a radical change. We are no longer considering an overt – or, as Hamilton once put it, "evident" – violation of a constitutional provision or prohibition. In this case, we are dealing with the question of what are the delegated powers of the federal government and what are the reserved powers of the states and the people, of whether the federal courts, by involving themselves in a given matter, are somehow changing the Constitution and the framework of our country by fiat. In other words, the notion of federal judicial supremacy creates a 'separation of powers' issue (in some instances) because it makes the states subservient to an arm of the federal government in the matter of their reserved rights and status. Further, it turns the idea of delegated powers on its head by giving the federal government final authority in the matter of the scope of its own powers, thus giving it the ability to re-invent itself and evolve beyond its authorized scope.

Also, consider how the steady politicization of the federal courts has affected our society at large, given the steady expansion of judicial power. This issue came to light in a particularly noteworthy way following the 2000 General Election. When the matter of recounting votes was thrown into the courts, suddenly the media was filled with stories of how "Judge so-and-so" votes, or who appointed him, and whether he was a Republican or Democrat; but, interestingly enough, what was not being discussed was the fact that we were openly admitting that our court systems have become politicized, and that Lady Justice was no longer blind but actually on the take.

The politicization of our courts is now all but openly admitted as such, and some politicians and special interest leaders take considerable pride in their efforts to tip the scales of justice in their agenda’s favor. Consider any typical Senate hearing on the appointment of a federal judge or Supreme Court justice. Senators parade before the television cameras asking candidates how they feel on various litmus test political issues. Judicial appointments come down, not to whether the judge understands the Constitution and has a history of upholding the law, but to whether he passes the political litmus test of the dominant party! Thus, our sacred liberties under the law have slowly been supplanted by the advancement of political agendas operating in the halls of justice. Due to the efforts of the nationalists, we have lost the concept of federalism and the separation of powers. Anything and everything is now subject to being read into the federal Constitution, and politics reigns supreme.

The Constitution never foresaw the development of political parties or the way partisan wrangling would play havoc with our system of government, particularly how it would corrupt the courts. As such, nullification is an important means by which states can defend themselves against partisan abuses of federal power. The Constitution is imperfect in this regard, and, I believe, should be updated to provide for Thomas Jefferson's solution to the clash of federal versus state authority and constitutional ambiguities:

But the Chief Justice [Federalist John Marshall] says, 'there must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two thirds of the States. Let them decide to which they mean to give authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our constitution, to have provided this peaceable appeal, where that of other nations is at once to force.

Wouldn't Nullification lead to Anarchy?

Ah, my favorite authoritarian bogeyman, ANARCHY. Failure to comply with authoritarian wishes will lead to chaos, blood in the streets, the rise of the undead, mattress tags being thoughtlessly torn off by the millions, and a multitude of similar horrors. Good Lord, deliver us!

The assumption here seems to be that, should nullification ever come into fashion, that states will start nullifying whatever federal laws they please and the country will fall apart. This fear hardly seems warranted though, and for a number of reasons:

First of all, it is in the best interest of the states to support the federal government in its legitimate, constitutional roles – such as providing for the common defense – and to cooperate with one another. State government officials are well aware of this fact, as are the people of the states, and neither will have any desire to unnecessarily alienate themselves from the rest of the country or bring about a crisis. As James Madison wrote in his report on the Virginia Resolution against the Alien and Sedition Acts in 1800, "It does not follow, however, that because the states as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed in a hasty manner, or on doubtful and inferior occasions." As is true of the use of any of their other rightful powers, states should exercise discretion in their use of nullification.

Second, political overlap means that, regardless of whether politicians represent state or federal interests, members of the same political party can be expected to pull in roughly the same direction. This factor lessens the potential for confrontations between Washington and the states, except in instances where opposing political parties are involved.

Third, it is in the best interests of the country overall that partisan designs do not corrupt the law or the political process; and while this can occur at both the federal and state levels, it is arguably more dangerous a menace at the federal level. This is because the effects of a bad state law or judicial edict are usually confined to the state that passes it, whereas bad federal laws and edicts affect every state. Freedom is apt to flourish more in de-centralized rather than centralized societies.

Fourth, recognition of the fact that states are likely to nullify controversial federal laws or edicts may help restrain federal politicians from attempting such actions in the first place.

Fifth, states already ignore onerous federal laws and provisions on occasion, and handle their internal affairs differently on a variety of issues every day, and the four horsemen of the apocalypse have yet to ride. Consider that not every state has adopted mandatory seatbelt or motorcycle helmet usage, in spite of federal threats to withhold highway funds – New Hampshire is one such state. Some states (like Montana) allow individuals to use marijuana for medicinal purposes, or in Alaska's case, for any reason at all (up to a certain quantity limit), and this is in direct contravention of federal policy (federal agencies continue to illegally raid and imprison persons living in such states). Arizona and Hawaii do not recognize Daylight Savings Time. Nebraska has the country's only unicameral, non-partisan legislature. And for one last example, consider that the State of Utah recently withdrew from the federal No Child Left Behind program. In spite of all these differences between the ways that states conduct their business, and others that I do not have space to mention, the country has gotten along remarkably well. The only people who are anxious about these differences are elitist authoritarians who think that it is, or should be, incumbent on everyone to act as the authoritarians believe is best.

Conclusion

Far from being a discredited political doctrine, nullification is, in actuality, a constitutionally consistent principle whereby sovereign states can defend their reserved rights and powers from federal acts of usurpation, most of which are motivated by partisan politics and power scheming. It is in every way consistent with the Constitution's fundamental principles, most notably the concepts of delegated powers and the separation of powers. Indeed, it should be recognized that it is not so much a state that nullifies a federal law or act, as it is the Constitution that does so, in that the Constitution limits what the federal government may rightfully do. Viewed in that light, nullification is really nothing more than a state saying to the federal government, "The Constitution does not authorize you to do this, therefore, we are not obligated to submit to you in this matter, and are choosing not to do so."

The REAL ID Act of 2005 is plainly and simply unconstitutional, and therefore an act of usurpation. The Constitution does not grant the federal government power to dictate state driver licensing requirements, nor does it allow Washington to force Americans to carry 'papers'. If the State of Montana decides to nullify this so-called 'law', it will have every right to do so. I would even go so far as to argue that it would have the duty to do so, given that Montana's elected officials are sworn to uphold the Constitution of the United States, of which the REAL ID Act is a naked violation.

Consequently, to Hal Harper and others who may have their doubts, I would say, stand up for yourselves with pride and assert your rights. Far too often these days, the federal government forgets that it is a servant tasked with certain limited duties, not an omnipotent master; and it is high time that it was put in its place – while such is still possible. Benjamin Franklin once said, "We have given you a Republic, if you can keep it." Simply put, nullification is all about "keeping it".

Man in Gray: A Tribute to the Life of Robert E. Lee

(Originally published on January 19, 2007 - I'm posting past articles before adding new material)

The British historian Lord Acton once said, "Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or the certainty of corruption by authority." As a student of history myself, I am compelled to agree with that observation. Unfortunately, the majority of names that occur to me when I think of history's most notable figures are, to some degree or another, associated with tyranny and oppression.

Nor has American history escaped this disturbing trend. Abraham Lincoln is most often named when Americans are asked to identify the best or greatest president of the United States; yet Lincoln overthrew the principles of the American Revolution, deliberately provoked a war when he might have negotiated a peace, figuratively tore the Constitution to shreds, ruthlessly silenced his opposition, and went to his grave with the blood of hundreds of thousands — and, in a sense, the lifeblood of the Republic itself — on his hands. Franklin Delano Roosevelt, who, in the words of former Supreme Court Justice William Rhenquist, "ranks foremost among the runners up" to Lincoln, imprisoned 110,000 Americans in internment camps, confiscated private property by fiat, stacked the highest court in the land with judges that would rubber-stamp his edicts, and firmly wove socialism into our political fabric with his New Deal. Of Roosevelt, H.L. Mencken once wrote: "I am advocating making him king in order that we may behead him in case he goes too far beyond the limits of the endurable." To this day, the shadows of Lincoln and Roosevelt still loom vast and dark over our public institutions and mindset, virtually eclipsing the world that preceded them. Usurpers and authoritarians all of political stripes routinely invoke their words and deeds like talismans against those who dare to challenge the power of the almighty state.

Fortunately, however, not all 'great' names need be found on display in history's rogues gallery. There are some noteworthy exceptions to Lord Acton's dictum, and one of them has a significant birthday this week.

Born January 19, 1807, General Robert E. Lee is perhaps even more towering a figure in death than he was in life, and he is nothing if not an enigma to most Americans. His military exploits are legendary. His character was such that even many of those who denigrate the Southern cause in the War of Secession cannot help but admire the man who nearly put the Confederacy on a paying basis. Physically, he was an imposing figure; battle-hardened men both rallied to him like a standard and wept like children in his presence. He insisted upon strict disciplinary standards, and took to the field of war with the wrathfulness of an Old Testament prophet; but he is equally famous for his humility and gentleness. A statue in his honor stands in the Capitol building in Washington D.C., the seat of power against which he once labored with all his energies. Having fought against the United States, he is still venerated as one of the greatest Americans.

As enigmatic as these qualities make Lee appear on the surface, he actually strikes me as one of the least mysterious personalities in our history. You see, General Lee lived by a code; and while many people profess to live by various creeds, Lee stands out as one of the few people who demonstrably kept to the course he had set for himself. Having studied the general and his life in detail over the years, I say with some assurance that his outlook on life can be summed up in the following quote:

Duty is the most sublime word in our language. Do your duty in all things. You cannot do more. You should never wish to do less.

This simple ideology is key to dispelling the popular mystery that surrounds Robert E. Lee, and for commending him to future generations as an example of both a great and good man. If he seems mysterious, or larger than life, or perhaps too good to be true, I feel it is largely because we are unaccustomed to such men in this age of denial, complacency, and moral relativism. Lee's celebrated biographer, Douglas Southall Freeman, writing in his four-volume R.E. Lee, stated: "Lee was one of the small company of great men in whom there is no inconsistency to be explained, no enigma to be solved. What he seemed, he was — a wholly human gentleman, the essential elements of whose positive character were two and only two, simplicity and spirituality".

No, we are not accustomed to this kind of man at all in our day. For that matter, neither were many who lived in his own day. Winfield Scott, general-in-chief of the United States army in 1861, scolded him for making the biggest mistake of his life when he turned down Lincoln's offer to command United States troops against the Confederacy, but Lee's sense of duty would not permit him to take that command. "I have not been able to make up my mind to raise my hand against my relatives, my children, my home," said Lee. And so saying he set himself on the hard road, one that led to Appomattox and ultimate defeat. In the end, however, it was also Lee's sense of duty that led him to end the fighting. "There is nothing left for me but to go and see General Grant," Lee remarked to his men during the those dark days following the Army of Northern Virginia's retreat from Confederate Richmond, "and I would rather die a thousand deaths…but it is our duty to live. What will become of the women and children of the South if we are not here to protect them?" When some of his men suggested that, instead of surrendering Lee might disband his army and let the men continue to fight as guerrillas, Lee replied:

If I took your advice, the men would be without rations and under no control of officers. They would be compelled to rob and steal in order to live. They would become mere bands of marauders, and the enemy's cavalry would pursue them and overrun many sections they may never have occasion to visit. We would bring on a state of affairs it would take the country years to recover from.

In the few years remaining to him after the war, Lee would have preferred to retreat altogether from public life and become a farmer; but once again, his sense of duty compelled him to do otherwise. He accepted the presidency of Washington College (now Washington and Lee) in Lexington, Virginia, firmly believing that the South's best hope for the future lay in raising up a generation of learned, self-disciplined men. "The thorough education of all classes of the people is the most efficacious means, in my opinion, of promoting the prosperity of the South," said Lee. "We must look to the rising generation for the restoration of the country." Lee continued in this new post, leading by example, until his death in October, 1870.

And while Lee was gracious in defeat, and is generally recognized as having done more to restore relations between North and South than any other single individual following the war, he never repented his participation in the Confederacy and never recanted her cause. "I could have taken no other course without dishonor," he wrote, "and if all were to be done over again, I should act in precisely the same manner."

"I deemed that you were fighting the battles of our liberty, our progress, and our civilization," Lord Acton wrote to Lee on November 4, 1866, "and I mourn for the stake which was lost at Richmond more deeply than I rejoice over that which was saved at Waterloo." In reply, Lee wrote that the South had fought for "the supremacy of the constitution, and the just administration of the laws made in pursuance to it":

I can only say that while I have considered the preservation of the constitutional power of the General Government to be the foundation of our peace and safety at home and abroad, I yet believe that the maintenance of the rights and authority reserved to the states and to the people, not only essential to the adjustment and balance of the general system, but the safeguard to the continuance of a free government. I consider it as the chief source of stability to our political system, whereas the consolidation of the states into one vast republic, sure to be aggressive abroad and despotic at home, will be the certain precursor of that ruin which has overwhelmed all those that have preceded it.

"Aggressive abroad and despotic at home." The United States of America, consolidated under a supreme federal system as per the wishes of men like Lincoln and Roosevelt, has largely fulfilled this dire prediction made by Lee. He had all of the assurances of history before him in making that prediction, and yet, as surely as he saw the inevitable consequences of our Jeffersonian Republic's overthrow, he also saw a reason to hope:

My experience of men has neither disposed me to think worse of them nor indisposed me to serve them; nor, in spite of failures which I lament, of errors which I now see and acknowledge, or of the present aspect of affairs, do I despair of the future. The truth is this: The march of Providence is so slow and our desires so impatient; the work of progress so immense and our means of aiding it so feeble; the life of humanity is so long, that of the individual so brief, that we often see only the ebb of the advancing wave and are thus discouraged. It is history that teaches us to hope.

We live in troubled, uncertain times, and many are tempted to despair of the future. But to those who feel the darkness closing in around as freedom's light dims and western civilization falters, I urge you to bear Lee's words in mind. History provides us with innumerable examples of tyrants and usurpers, but it also provides us with men like Lee; and how many more such men we see in the future will depend upon how much emphasis we place on his example, and the examples of men like him, upon re-affirming the concepts of duty, honor, and responsibility for oneself. Like those of Lee's day, we must look to the rising generation for the restoration of our hopes, and we can start by celebrating the life of this extraordinary man on the 200th anniversary of his birth. Join me in paying tribute to General Robert E. Lee, a great and good man, and a hero not only for the American South but for all free people and for all time.

Engines of Arbitrary Government, or Feds Gone Wild

(Originally published September, 2005 - I'm posting past articles before adding new material)

One of the most interesting but curiously obscure incidents in American history took place on May 25, 1861. It was on that day, at approximately 2:00 in the morning, that a Maryland man by the name of John Merryman was awakened by federal soldiers, taken from his home and imprisoned at Fort McHenry on the basis that he was involved with a group of armed, pro-secession advocates. Despite the nature of the accusation against him, no warrant was ever issued for Merryman. Indeed, there was no civil authority involved in the matter at all. The arrest was carried out solely by military authorities for reasons having to do with "public safety".

Merryman protested his arrest by petitioning for a writ of habeas corpus: a judicial mandate ordering that an inmate be brought before a court so that it can be determined whether that person has been lawfully imprisoned. Merryman's petition was eventually granted by Roger Taney, Chief Justice of the United States Supreme Court; however, General George Cadwalader, commanding federal forces at Fort McHenry, denied Taney's order on the basis that President Lincoln had authorized his commanders to suspend the privilege to a writ of habeas corpus when, in their judgment, the public safety called for it.

Taney responded with a blistering criticism of the Lincoln administration, highlighting the fact that only Congress can suspend the privilege to a writ of habeas corpus, and underscoring how Lincoln's actions threatened the very foundation of American freedom. On the latter point, Taney wrote:

The constitution provides, as I have before said, that ‘no person shall be deprived of life, liberty or property, without due process of law.’ It declares that ‘the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized’. It provides that the party accused shall be entitled to a speedy trial in a court of justice.

These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.

A copy of Taney's opinion was furnished to Abraham Lincoln, who responded in his typical diplomatic fashion by issuing an order to arrest the Chief Justice. Fortunately, some semblance of reason prevailed and this order was never carried out. Nevertheless, the case of John Merryman, specifically the failure of Congress and the American people to call Lincoln on his usurpation, set a long-reaching precedent that the President of the United States can take whatever actions he deems necessary to 'defend the country, the integrity of the Constitution, and the public safety,' whether the Constitution specifically authorizes those actions or not. Subsequent U.S. presidents picked up Lincoln's usurpation torch, and now, one hundred and forty-four years after Merryman, power-hungry chief executives are largely viewed as men of 'determination' and 'vision', while those who protest "What about freedom and the Constitution?!" are largely viewed as partisan obstructionists, traitors, or pointy-headed idealists who wouldn't know the real world if it hauled off and gave them a black eye.

Enter the September 11, 2001 attacks on New York and the Pentagon. True to the Lincoln paradigm, our federal government reacted by immediately undertaking a series of fiat actions that have significantly undermined our constitutionally protected liberties, all in the name of security. Yes, apparently we are expected to believe that the only way to protect our freedom is to surrender it. Only by entrusting everything we love and cherish most to the care of those thugs, liars and thieves that run Washington D.C., can we ever achieve true security. Well, okay, sure. Somehow that sounds rather like a father thinking that he can best protect the chastity of his pretty sixteen-year-old daughter by dropping her off at a biker bar, but I'm just a pointy-headed idealist, so what do I know?

At any rate, part of this new post-9/11, Lincolnesque reality is the "enemy combatant" designation. Enemy combatants, the Bush administration tells us, are those individuals (including American citizens) whom the administration regards as potential terrorists. Those designated as enemy combatants, so says the administration, may be imprisoned without charge and held without trial. Yes, you read that right – even American citizens.

The Bush administration's "enemy combatant" doctrine is currently working its way through the federal court system due to the case of one Jose Padilla, an American citizen and former Chicago gang member who was arrested by federal authorities in 2002 on suspicion of having plotted to blow up buildings and set off a radioactive 'dirty' bomb. In March of this year, a federal judge in South Carolina (ex-secessionist state, beware) ruled that Padilla could not be held indefinitely without charge; however, on September 9, a three-judge panel of the 4th U.S. Circuit Court of Appeals overruled that decision. "The exceedingly important question before us," wrote Judge Michael Luttig, "is whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war. We conclude that the President does possess such authority." Padilla's attorney, Andrew Patel, saw the matter somewhat differently. "It's a matter of how paranoid you are," Patel said. "What it could mean is that the president conceivably could sign a piece of paper when he has hearsay information that somebody has done something he doesn't like and send them to jail — without a hearing (or) a trial."

Our government make a mistake or do something corrupt? OUR government? No...

Now, as you read this, please understand that I am not arguing the case for Jose Padilla's innocence. He may very well be guilty as sin, of this alleged crime or something equally sinister. He may indeed have planned to blow up buildings and detonate a dirty bomb. He may be personally responsible for the extinction of the dinosaurs, the sinking of Atlantis, the fall of Rome, the Black Death, or the return of bell-bottoms. He may be sending bad vibes out from his cell in Charleston and keeping young children awake at night. I don't know, and that's not what I'm arguing here.

What I am arguing here is that Judge Michael Luttig, 4th U.S. Circuit Court of Appeals, got it wrong. Horribly wrong. The exceedingly important question before his court was not whether Jose Padilla is a threat or is in league with Al Qaeda, but whether or not the United States is a country of laws.

It may surprise Judge Luttig to learn this, but not only do American citizens have certain enumerated and inviolable rights, but the Office of the President is empowered – and thus limited – by Article II of the United States Constitution, not the courts. Therefore, it makes no difference what the 4th Circuit Court of Appeals says about what the President should be able to do, what ultimately matters is what the Constitution says he may do. And nowhere in the Constitution do we find any reference whatsoever to "enemy combatants," or to the President having any power to designate an American citizen as such, or to hold said citizen indefinitely without either charge or trial. There is a body of law that applies to this situation, and not just law but LAW, as in the Supreme Law. The Supreme Law that President Bush and the 4th Circuit Court of Appeals judges swore to uphold but are steadfastly ignoring. Like it or not, guilty or not, Mr. Padilla is an American citizen, and that means that he has rights. And like it or not, good-intentioned or not, President Bush is the constitutionally limited chief executive of a constitutionally limited federal government, and that means that he has to respect Mr. Padilla's rights.

According to Article III, Section III of said Constitution, if Jose Padilla is guilty of making war against the United States, he is guilty of treason, and he may be tried and punished for the crime of treason, provided that he is formally charged, speedily and publicly tried before a jury, and represented by counsel. Period. He cannot be arbitrarily stripped of the privileges of his citizenship, treated as a non-entity, and filed away under 'E' for Enemy Combatant.

"So what is the President to do then?" some will ask. "Nothing? Should he just turn a suspected terrorist loose on the streets again and take the chance on him going through with his alleged plans to cause murder and mayhem? Is it not worth granting the president the benefit of the doubt if it takes a potential mass murderer off the streets?"

Call me crazy, but I find questions like these fundamentally disturbing. On one hand, it alarms me that Americans are so willing to sell out their own hard-won freedoms; and on the other, it concerns me that the President of the United States and the 4th Circuit judges, all of whom have sworn an oath to uphold the Constitution, either think so little of the document, or are so ignorant of it, that they have overlooked a legitimate, constitutional means for dealing with the Padilla situation (outside of charging him with treason and having a trial).

"Which is?" you might ask.

It's very simple, really. If the President feels, but cannot necessarily prove, that Jose Padilla is, or was, involved in making war against the United States in cahoots with a foreign enemy, and does not want to free him to walk the streets again, he can appeal to Congress to suspend the privilege of the writ of habeas corpus for Padilla, as provided for in Article I, Section 9 of the Constitution. If Congress agrees, it can grant the suspension and the Bush administration will be able to honor its obligation to uphold the Constitution and respect the rights of American citizens, while keeping Padilla off the streets at the same time. Unfortunately, respect for the Constitution as our Supreme Law has eroded to the point where this legitimate solution has, apparently, not even occurred to the administration, the 4th Circuit judges, or to many of the everyday people who are dependent upon the sanctity of the Constitution for their freedoms and very way of life.

Whatever you think of Jose Padilla personally, Andrew Patel has it right. We're teetering on the brink of a dangerous plunge. Take a good look into that hole, America. Take a good, long look. If President Bush and company are successful in emulating Abraham Lincoln's "I think it's a good idea, and I have the biggest guns on my side, therefore I can," example, they will strengthen the belief that presidents can throw the Constitution out – and all of our most sacred freedoms with it – as long as they claim to be "protecting the country" in the process. This precedent could lead to American citizens, a host of modern day Merrymans, being squirreled away in federal prisons based on hearsay, misinformation, or even spurious and politically motivated charges.

Don't think it could happen here? Our Founding Fathers did. (You remember them, right? That group of funny, pointy-headed idealists that school children used to learn about when they really should have been practicing self-esteem and New Math or writing hate mail to Charlton Heston?). In framing our Constitution, they reviewed the history of civil government and concluded that most of it was the history of tyranny, that much of that tyranny was somehow good-intentioned, and that man has a startling predilection for repeating his worst mistakes. Furthermore, they thought all of that was a darned shame, and they resolved to include safeguards in our Constitution that would help prevent such from happening on these shores. Ultimately, the American people themselves allowed the tyranny to creep in anyway, as Benjamin Franklin (pointy-headed idealist extraordinaire) predicted they would; but that doesn't necessarily mean that we must allow this to continue.

I've been more than a little sarcastic in this rather lengthy piece, but I do seriously hope that I may have inspired you to reconsider the idea of "enemy combatants"; the concept that security comes at the price of abandoning certainty; and the notion that there is a glass box containing a crown and a scepter in the Oval Office, and with the words "In Case of Emergency, Break Glass" stenciled on the front. You may not care about Jose Padilla; and, to be honest, he may not be worth caring about. But you may care more about the next suspected enemy combatant that comes along. You may know that person. You may BE that person. And if that unfortunate day arrives, the position you took on the Padilla case may very well come knocking at your door, arm-in-arm with the ghost of John Merryman. The Padilla case is truly about far more than the fate of one man, who may or may not be guilty. It's about a priceless principle, the rule of law; a principle we are in danger of throwing away because we're so busy concentrating on the threat from without that we're ignoring the equally, if not more, dangerous threat from within.

Consider the words of Sir William Blackstone (British pointy-headed idealist extraordinaire):

To bereave a man of life or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.

Practical Action for Defeating REAL ID

(Originally published October 2006 - I'm posting past articles before adding new material)

Those of you who are as concerned as I am about the arrival of REAL ID may be wondering if the program can be defeated, or if we're going to be forced to watch our country descend yet another level into the police-state hell toward which George W. Bush and his GOP allies seem to be so gleefully driving us.

First the bad news. . .

Barring the Democrats taking control of Congress with a veto-proof margin in November, and rescinding REAL ID as their way of giving Republicans the finger, I think we're going to have to reconcile ourselves to the program. There are several reasons for this:

1. Many Americans will accept it because it will give them the warm-fuzzies (an electric blanket can do that for you for far less hassle).
2. State politicians will go along with it because they're used to knuckling under to D.C., and don't wish to be accused of taking a soft stance on terrorism (on the whole, they suffer from a severe dorsal calcium deficiency).
3. Most freedom-loving Americans will sit on their principles and do little more than complain about it (although they might roll up their sleeves and post about it in a chat group, if they're feeling especially feisty on a given day).
4. Revolution is bloody and expensive (read up on it sometime).

I realize that this is a pessimistic view, but I'm also afraid that it is realistic. We are not seeing a national outcry over REAL ID at anywhere near levels sufficient to spur action, such as we have seen with eminent domain concerns created by the Supreme Court's Kelo decision. Nor does any such outcry appear to be forthcoming. Also, with few exceptions, states seem to be moving toward compliance, even if grudgingly. In a recent article in the Casper Star-Tribune, several Wyoming lawmakers were quoted as expressing frustration with REAL ID. For example, state representative Mary Gilmore of Natrona County stated that REAL ID was "just another unfunded mandate" that was taking state and local power away, and that she resents these kinds of things "terribly". Yet, for all of their frustration with the act, none of the Wyoming lawmakers were quoted as suggesting that the Cowboy State not comply with it. New Hampshire, which has been chosen to test pilot REAL ID, had a spirited debate over the issue this past spring and came close to rejecting the program. There is still a chance that New Hampshire may kill REAL ID, but there are strong voices urging compliance, even in the "Live Free or Die" state. Earl Sweeney, Assistant Commissioner for New Hampshire's Department of Safety was recently quoted as saying that the state should participate so that it can help "shape" REAL ID. "We hope that that would place us a little closer to the driver's seat than it would if we were just in the back of the bus," Sweeney commented. It appears that Sweeney is all for letting the state be driven over a cliff, just as long as it gets to choose which rocks it lands on at the bottom.

Aside from New Hampshire, only Alaska has taken action to oppose REAL ID thus far. A bill to bring Alaska in line with REAL ID requirements was defeated in the state House of Representatives this past May, after having been approved by the state senate. So, for the moment, Alaska has REAL ID on ice. How long that will last once the political arm-twisting begins in earnest is difficult to predict. Most state politicians are worried that non-compliance with REAL ID will prevent state residents from flying or entering federal buildings; and, for that reason, they feel they must comply, no matter how much they hate the idea. This is true country-wide.

Now for the good news. . .

While REAL ID, like fire ants, will probably be coming to a state near you rather sooner than later, there is at least one potentially pragmatic strategy for defeating it in the long run.

As I mentioned, most state legislators seem concerned about the prospect of their citizens not being able to fly or enter imperial, er, federal, buildings without the Mark of the Bush on their persons, so why not suggest a compromise? If your state legislator feels that he or she must support REAL ID, ask them to vote to allow citizens to choose whether they want the federal uber ID or an old fashioned state drivers license. After all, if a person makes an informed choice, then they can't really complain about the results, and hence the politicians shouldn't worry so much about having their tails set ablaze at the polls. Require DMV to have non-compliant types sign a form acknowledging that, yes, I understand I will be deemed a second-class citizen and that little children will point at me if I reject this affront to my freedoms; but if this be treason, make the most of it. Or words to that effect. . .

My thinking here is that, not only will this offer you an out, it will also set REAL ID on the path to a well-deserved death by forcing it to confront that one thing which modern Americans will defend with a vengeance: their convenience.

According to the Casper Star-Tribune article referenced above, implementing REAL ID will have (in part) the following effect:

"Along with a new design, the licenses will be much more difficult to obtain or renew. . . People will see an end to renewals by mail. They'll have to go to Driver Services armed with a certified copy of a birth certificate, a Social Security number and, if applicable, a marriage license or proof of legal change of name. That will probably increase the average time it takes a person at Driver Services from about 15 minutes to 45 or even 60 minutes. . . The new cards will also likely increase fees, as the state shoulders a greater financial burden."

Given a choice, most people will side with convenience. Once they hear a few horror stories about long waits, increased fees, and stupid questions being asked at DMV, they are likely to ask for the old driver's license.

In addition to this, other problems are bound to arise under REAL ID (although not in states where residents are not given a choice concerning compliance). For instance, what will happen if you do not carry the Mark and you're called in for jury duty in a federal case? Well, there's a good chance that you'll be able to get out of it, considering that you cannot be forced to carry the ID but cannot enter a federal building without it. At the very least, the situation presents good ground for a legal challenge should a court insist that you acquire the new license and report for duty. Consider also what will happen when those called as witnesses in federal cases are unable to testify because they can't legally enter a court room. Access to the judicial system would present a problem of such glaring magnitude that the federal courts would not be able to hide their eyes from it; thus, this is a scenario where a few people really could have a significant impact on the system.

If Bush and his goosesteppers get their way, ultimately, the federal government will try tying REAL ID into so many things that you won't be able to function without it, just as has been done with Social Security numbers, which you are also -- technically -- not required to have. Eventually, I expect them to enhance the ID requirements to include biometric data and to tie the ID in with some form of taxation, such as a national sales tax (raised to help with the war, you understand). A provision would be enacted whereby you would be taxed on purchases only after you spend X number of dollars, but the only way you could take advantage of this would be to have the proper machine-readable card, which would, in turn, be tied into a federal database that would track and tally your purchases. This would give D.C. the advantage of collecting comprehensive data on absolutely everything you purchase (and thus where you travel, how you live, what you read, what movies you rent, etc). Anyway, you get the point. Give D.C. an inch and it will literally take a mile (and they get to decide what a 'mile' is, too). The point is to try and undermine the system before it gets that far.

So give it a try. Contact your state representative and, if you can't persuade them to sink REAL ID, ask them to support a measure that will give people a choice as to whether they want it or not, pursuant to their understanding the consequences of not having it. Many state politicians seem like they're asking to be given a reason not to comply with REAL ID. This approach may give them a measure of satisfaction where that is concerned. It's also very difficult to argue against giving people a choice when the new requirements will present such a tangible expense and inconvenience for the average person. More importantly though, it will leave you with a bit more of your freedom than you might otherwise retain, and, over time, such allowances may prove to be the monkey wrench that wrecks the authoritarian machine.

Links:

New license plan creates headache for lawmakers

Real ID facts prove devisive

Alaska Says 'No' to REAL ID

(*Note...since this article was written, a handful of courageous states, such as Montana, have passed legislation refusing to cooperate with REAL ID, and others are considering such action. Courage, it seems, is not utterly dead after all).

In Defense of Civil Government

(Originally published October 2006 - I'm posting past articles before adding new material)

The talk and action coming out of Washington D.C. where the so-called War on Terror is concerned has steadily gone from bad to worse where constitutional law and civil liberties are concerned. George W. Bush has clearly demonstrated that he considers himself above the law and thus free to act however he pleases. He has all but dared Congress and the American people to rein him in, and neither has elected to do so. Polling data consistently shows that Americans are terribly displeased with Bush and his Republican colleagues, but, to date, there have been no mass protests, no clarion calls for reform. A few congressional Republicans have expressed concern with Bush's policies, but when the time comes for action, they have mostly cowed to his wishes and towed the line in the name of party unity. The Supreme Court has offered some resistance, but it is difficult to tell whether that will continue and how far the justices will go.

Unless the American people decide to vent their wrath at the polls in November (and hand Congress over to the Democrats — oh, joy), it seems that the Usurper in Chief will continue to treat the world like his own backyard, using the United States military to do his landscaping and threatening us with the specter of a renewed draft and even the offensive use of nuclear weapons. National security agencies will continue their metamorphosis into an American Gestapo, and we may see some form of martial law imposed should another major terrorist attack occur on American soil, or should we experience another Hurricane Katrina scale natural disaster. Unless things turn around quickly and soon, I also expect to see a sedition act of some type imposed, likely accompanying the draft, or else imposed as part of an executive order instituting martial law, whether over a specific section of the country or from sea to shining sea. Some may argue that such concerns are nothing but paranoid, tin-foil hat conspiracy talk, but I would encourage doubters to read up on the history of Abraham Lincoln's actions during the War of Secession, and then to reflect on the degree to which modern Republicans and others have deified Lincoln. Not only can 'it' happen here, it already has, and it can happen again.

Our best hope for bringing the wheels of this authoritarian machine to a halt, short of some remarkable change in the attitude of the American people (or a meteorite mercifully plowing into D.C.), is to nudge the states into invoking federalism, now, before another 'crisis' falls upon us and the Republic formally becomes an Empire. Some state governors, such as Montana's interesting and unusual Democrat Brian Schweitzer, have shown promise in this regard, and some state legislatures also seem willing to take up the torch. What they need is greater public support to strengthen their resolve, and some formal acts of legislation to shore up the walls. The states can and should take action now to secure their rightful powers and the liberties of their people, and I believe this can be done in a number of simple but effective ways.

The following is my attempt to step into the legislative gap and encourage the present levels of state dissent to bloom into outright, and constitutionally sound, resistance. I refer to it as The Preservation of Civil Government Act. In short, it is designed to concisely outline the threat we face and assert the rightful sovereignty of the states in opposition to a president who is one step away from donning robes and a crown. Some states will make this naturally easier than others, as they have various constitutional safeguards that expressly defend their sovereignty. Montana is one such state. Article II, Section II of the Montana Constitution states that Montanans "have the exclusive right of governing themselves as a free, sovereign, and independent state," and "may alter or abolish the constitution and form of government whenever they deem it necessary." The Montana constitution also forbids any armed party from entering the state without permission. This is very good, express language, and would lend itself nicely to an Act such as I am proposing. Check your own state's constitution and see if there are any similar statements in it that could lend themselves to the cause. If anyone would like to take what I have outlined here, adapt it to your own state and submit it to the consideration of a freedom-friendly legislator, you are more than welcome to do so.

The Preservation of Civil Government Act

An Act

to preserve the institution of civil government, the sovereignty of the State, and the civil liberties guaranteed by the Constitution of the United States and Constitution of the State of ______ during extraordinary times.

WHEREAS the maintenance of civil government, held in check by the protective confines of law and in subjection to the sovereign authority of the people, is the cornerstone of our uniquely American heritage and the only means by which peace and freedom may be maintained together in perpetuity; and

WHEREAS it behooves the friends of peace and freedom to be prepared at all times to meet such circumstances as may threaten the integrity of either condition, and to do so by taking appropriate steps to ensure the continuance and overriding authority of civil government even in extraordinary times; and

WHEREAS the propagation of weapons of mass destruction in the hands of nations, groups and individuals hostile to the United States, in conjunction with the great dependency of our society upon infrastructure and institutions which are vulnerable to attacks by such weapons, or to some form of natural calamity, has substantially increased the likelihood of an event in which civil government may fail or may be otherwise subverted at the federal level; and

WHEREAS to date, the federal government of the United States has taken no action to ensure the continuation and overriding authority of civil government in the event of an overwhelming crisis, and has actually intimated that civil institutions and authority may be made subordinate to military authority by presidential fiat; and

WHEREAS Article IV, Section IV of the Constitution of the United States guarantees to each state in this Union a republican form of government, while Amendments Nine and Ten reserve all powers not specifically granted to the United States to the several states and their people respectively; and

WHEREAS There is no power granted to the federal government of the United States to suspend or otherwise override the Constitution of the United States, or to overthrow the institutions and authority of civil government at any level, nor are the states prohibited by the Constitution from enacting such measures as are appropriate to their own internal institutions, peace and harmony; and

WHEREAS the doctrine espoused by the first American patriots and declared by them to be a self-evident truth, and upon which our country and its institutions were ultimately founded, is that government is a servant of the people, who possess an unalienable right to alter or abolish their government and institute new government, "laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness".

Now, therefore Be It Enacted by the Legislature of the State of ______:

That should a situation arise in which the federal government of the United States is unable or unwilling to fulfill its constitutionally mandated duty to guarantee the continuance of republican government, the State of ________, acting in its free, sovereign, and independent character, shall, by authority of the legislature, or upon declaration of the governor in the event that the legislature is not in session or is unable to convene:

(a) Declare the existence of a Constitutional State of Emergency.

(b) Immediately convene the legislature, should it not already be in session, to consider the scope of the situation and to take appropriate actions to secure civil authority within the state and the freedom and peace of its citizens.

(c) Exclusively exercise all police and emergency management powers under its authority within state boundaries.

(d) Offer all necessary and appropriate cooperation to its sister states and to the federal government and armed forces of the United States, taking care to ensure that the continuance and overriding authority of civil government is guaranteed to the State; but no armed forces shall be introduced into the State for any purpose without the permission of the legislature, or, should the legislature not be in session or is unable to convene, the governor.

(e) Call upon the federal government to resume its constitutional role, or call upon its sister states and the armed forces to enact suitable measures to speedily restore the federal government to operation, or to convene a constitutional convention -- as the situation dictates.

(f) Guarantee to the people of this State the fundamental and inalienable rights enshrined in the Constitution of the United States and the Constitution of ______, including the freedoms of religion, speech, privacy, assembly, redress of grievances, the right to bear arms, freedom from cruel and unusual forms of punishment or excessive bails, freedom from unreasonable searches and seizures, and the right to a speedy and public trial before an impartial jury.

Be it also enacted by the Legislature of the State of ______:

That a copy of this Act be furnished to the legislatures of our sister states of this Union, to the Congress of the United States, to the Attorney General of the United States and the President of the United States, with a request that these respective bodies and persons earnestly consider the realities of our time, and that they take appropriate steps to ensure the continuance of Republican government, and with it the peace and harmony of the American people, as handed down to us by our forbearers and enshrined in our most sacred documents and institutions.