Bob Greenslade
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The Amendments, which comprise the Bill of Rights, would be easier to understand if they had been titled the Bill of Prohibitions or Bill of Restraints.
When the Bill of Rights is read through the preamble, it shows that none of the Amendments define or limit the extent of the individual rights of the people. The Amendments do, however, define and enumerate the extent of the restraints placed on the powers of the federal government concerning the rights of the people and the powers reserved to the States.
We need to stop using and start rejecting statements like “First Amendment Right of free speech” or “Constitutional right of free speech.” We have the right of free speech and the First Amendment simply placed a constitutional prohibition or restraint on the powers of the federal government concerning the right. The Amendment did not grant us this right.
The road to resurrecting the intent of the Amendments should start right now, right here, and with us. Whenever the intent of the Amendments is mischaracterized, we need use it as an educational moment to enlighten our fellow citizens.
In my opinion, the nullification models are open to attack because they do not define and make the separation of power between the States and their federal government the hammer. The use of the word "delegated," without more, negates nullification because the taxing power, which was used as the basis for the constitutionality of the bill, is a delegated power. It also negates the Tenth Amendment because the Amendment ONLY applies to powers not delegated. If heath care does not fall of the federal side of the separation, and it doesn't, then the federal government cannot invoke a delegated power as the basis for the law.
I would pose a question to Stepman.
Since the jurisdiction of the federal judiciary is limited to cases and controversies arising UNDER the Constitution, what is the remedy and venue when the federal government acts OUTSiDE of the Constitution?
The Acts violates the separation of power between the States and their federal government so the so-called Supremacy Clause has no application because there was no authority to pass the law in the first place.
I have always believed the States were in charge of elections for the P and VP...thanks for the confirmation.
This subject demonstrates why it is critical to understand the purpose of the document known as the Bill of Rights.
The preamble to the Bill of Rights declares that the purpose of the proposed amendments was to prevent the federal government from “misconstruing or abusing its powers.” To accomplish this, “further declaratory and restrictive clauses” were being proposed. The Amendments, when adopted, placed additional restraints on the powers of the federal government. There is no First Amendment right of free speech―there is a First Amendment restraint on the powers of the federal government concerning the right of free speech.
Since the First Amendment imposes a restraint on the power of Congress, the Senate cannot use a delegated power (treaty) to negate a constitutional restraint (First Amendment). In other words, Congress cannot use one clause to negate another.
Thus, the natural right of free speech cannot be affected or negated by a treaty.
"The principles of nullification logically flow out of the delegation of powers that created the federal government in the first place."
Since there was a separation of power between the States and the federal government, which constitutes the original grant of power, and a secondary grant of power, which contain the delegated powers in the body of the Constitution, I believe your statement should be something like this:
"The principles of nullification logically flow out of the separation of power that created and empowered the federal government in the first place and the secondary delegation of powers that enumerate and define the authority of the federal government to put the original grant of power into effect."
Here is the 6th way if republicans gain control and think outside the box.
http://www.thepriceofliberty.org/greenslade.html
"The federal government has no authority..."
These 6 words should flow from the lips of every American who still believes in liberty.
In the Massachusetts Ratifying Convention in 1788, Mr. Ames made the following statement concerning the original method of electing the members to the Senate and the consequences if the people elected them:
“But whom, in that case, would they represent? Not the legislatures of the states, but the people. This would totally obliterate the federal features of the Constitution. What would become of the state governments, and on whom would devolve the duty of defending them against the encroachment of the federal Government? A consolidation of the states would ensue, which, it is conceded, would subvert the new Constitution, and against which this very article, so much condemned, is our best security. Too much provision cannot be made against a consolidation. The state governments represent the wishes, and feelings, and local interests, of the people. They are the safeguard and ornament of the Constitution; they will protract the period of our liberties; they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights.”
During debate on the proposed constitution in the North Carolina Ratifying Convention, William Davie stated:
“The next department is the Senate. How is it formed? By the states themselves. Do they not choose them? Are they not created by them? And will they not have the interests of the states particularly at heart? The states, sir, can put a final period to the government… If the state legislatures think proper, they may refuse to choose senators, and the government must be destroyed.”
As stated by Mr. Davie, the authority to appoint members of the Senate gave the States the ultimate power of nullification.
Yo Mr. Elitist...you missed the point...he did not know basic geography. That said, I read your latest on the income tax. You might want to re-think your statement on the 16th Amendment.
In 1980, the Congressional Research Service (CRS) prepared a report for Congress concerning the federal income tax. (According to CRS web-page, they provide Congress with legal and other analysis that is authoritative, accurate, objective and nonpartisan). This Report discussed two 1916 Supreme Court decisions and the effect of the Sixteenth Amendment on the federal government’s power to tax:
“The Supreme Court, in a decision written by Chief Justice White, first noted that the Sixteenth Amendment did not authorize any new type of tax, nor did it repeal or revoke the tax clauses of Article I of the Constitution… Direct taxes were, notwithstanding the advent of the Sixteenth Amendment, still subject to the rule of apportionment and indirect taxes were still subject to the rule of uniformity.”
Source for above quote: “Some Constitutional Questions Concerning the Federal Income Tax,” Howard M. Zaritsky, (Congressional Research Service, Washington, D.C., 1980) p. 5, Report No. 84-168 A 734/275.
Note: The two cases were Brushaber v. Union Pacific Railroad Company, 240 U.S. 1, (1916) and Stanton v. Baltic Mining Company, 240 U.S.103 (1916).
In the Baltic Mining Company case, Justice White wrote:
“(T)he Sixteenth Amendment conferred no new power of taxation but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged….”
As stated by above, the Sixteenth Amendment did not authorize any new type of tax or repeal or revoke the existing clauses. Indirect taxes were still subject to the rule of uniformity and direct taxes were still required to be apportioned among the several States based on population. Thus, the Amendment could not have granted Congress a new power to impose income taxes because the Amendment did not authorize a new type or class of tax.
"the proliferation of the college educated citizen? "
Like the one who asked me if the Japanese flew over the US before bombing Pearl Harbor in 1941.
I continue to say the way to address federal usurpations is through separation of power (between the States and their federal government) resolutions adopted by the States and submitted to the feds with nullification as the action to be taken to negate the usurpations...followed by a constitutional amendment...yes a Convention can be called and restricted to a single issue.
"The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer." [Emphasis not added]
Alexander Hamilton, Federalist Essay No. 83.
These comments confirm what I told a friend recently during a discussion... the biggest threat to liberty is not government...it is our fellow citizens.
Maybe a copy of the pamphlets should be sent to Chief usurpers Obama and Roberts.
A 1980 Congressional Research Service (CRS) report discussed the effect of the Sixteenth Amendment on the federal government’s power to tax:
“The Supreme Court, in a decision written by Chief Justice White, first noted that the Sixteenth Amendment did not authorize any new type of tax, nor did it repeal or revoke the tax clauses of Article I of the Constitution… Direct taxes were, notwithstanding the advent of the Sixteenth Amendment, still subject to the rule of apportionment and indirect taxes were still subject to the rule of uniformity.”
As stated by CRS, the Amendment did not authorize any new type of tax or repeal or revoke the existing clauses. Indirect taxes were still subject to the rule of uniformity and direct taxes were still required to be apportioned among the several States.
The Report also made the following statement concerning the nature of the income tax:
“Therefore, it can be clearly determined from the decisions of the United States Supreme Court that the income tax is an indirect tax, generally in the nature of an excise tax.”
In 1989, the CRS revised and updated its report and discussed the nature of an excise tax:
"What does the court mean when it states that
the income tax is in the nature of an excise tax?"
“An excise tax is a tax levied on the manufacture, sale, or consumption of a commodity or any various taxes on privileges often assessed in the form of a license or fee. In other words, it is a tax on doing something to property or on the privilege of holding some property or doing some act, not a tax on the property itself. The tax is not on the property directly, but rather it is a tax on the transaction.
When a court refers to an income tax as being in the nature of an excise, it is merely stating that the tax is not on the property itself.”
If the so-called tax in Obamacare is not direct then it can only be indirect. A review of the above shows it fails that test too.
Robert’s mentioned Supreme Court Justice Joseph Story’s commentaries on the Constitution in the opinion. Story addressed the meaning and scope of the general welfare phrase:
“Do the words, ‘to lay and collect taxes, duties, imposts, and excises,’ constitute a distinct, substantial power; and the words, ‘to pay debts and provide for the common defence, and general welfare of the United States,’ constitute another distinct and substantial power? Or are the latter words connected with the former, so as to constitute a qualification upon them? This has been a topic of political controversy; and has furnished abundant materials for popular declamation and alarm. If the former be the true interpretation, then it is obvious, that under colour of the generality of the words to ‘provide for the common defence and general welfare,’ the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers; if the latter be the true construction, then the power of taxation only is given by the clause, and it is limited to objects of a national character, ‘for the common defence and the general welfare.’
The latter has been the generally received sense of the nation, and seems supported by reasoning at once solid and impregnable. The reading, therefore, which will be maintained in these commentaries, is that, which makes the latter words a qualification of the former; and this will be best illustrated by supplying the words, which are necessarily to be understood in this interpretation. They will then stand thus: ‘The congress shall have power to lay and collect taxes, duties, imposts, and excises, in order to pay the debts, and to provide for the common defence and general welfare of the United States;’ that is, for the purpose of paying the public debts, and providing for the common defence and general welfare of the United States. In this sense, congress has not an unlimited power of taxation; but it is limited to specific objects, ---the payment of the public debts, and providing for the common defence and general welfare. A tax, therefore, laid by congress for neither of these objects, would be unconstitutional, as an excess of its legislative authority."
Justice Story also stated the taxing power could not be used as a regulatory power:
“The power to lay taxes is a power exclusively given to raise revenue, and it can constitutionally be applied to no other purposes. The application for other purposes is an abuse of the power; and, in fact, however it may be in form disguised, it is a premeditated usurpation of authority."
Looks like Justice Roberts needs a new title: Chief Usurper of the United States Supreme Court.
Shortly after his death in 1850, John C. Calhoun’s essay entitled: "A Discourse on the Constitution and Government of the United States" was published in book form. In describing the federal government, Calhoun, who had been Vice President of the United States from 1825 to 1832 wrote the following:
"It is federal, because it is the government of States united in a political union, in contradistinction to a government of individuals, that is, by what is usually called, a social compact. To express it more concisely, it is federal and not national because it is the government of a community of States, and not the government of a single State or Nation."
I might add a 6th...the war on truth and knowledge through the media and the education system.
Question-Why do we need a hemp act for the federal government when that government was not granted the authority in the first place?