Freedom First Society

In a Nutshell, the Case Against a Con-con

The proponents of an Article V constitutional convention tell us it’s necessary, to save the country. As confirmed opponents, we say that we must at all costs avoid it, to save the country — or at least, to save the Constitution. Yet, so far, it has not been the easiest thing in the world, to get a grasp of either side’s argument.

The burden of proof should surely be on the proponents of a major undertaking of this sort, which, though described in the Constitution, has yet to occur in our entire history. Instead, they lobby largely outside the public view for their unprecedented “solution” and seek no debate. All the more then, do we as opponents of an Article 5 “Con-con” need to identify and understand the principal objections, to help us carry the issue.

Alright, then, what is fundamentally wrong with the Article V Con-con push?

The Alleged Benefits

Let’s start with the alleged benefits of holding an “A5C” (Article V Con-con). The notion most successfully selling state legislatures on an A5C is the idea that THIS is the key to reigning in that out-of-control monster, our federal government. There are even claims that this part of Article V was put into the Constitution precisely as the solution that states might bring into service, like pulling a rabbit out of a hat, should the federal government ever exceed its constitutional bounds.

This recently contrived mythos is outlandishly inaccurate. What Article V says it would call a convention to do, is to propose constitutional amendments. Therefore, to suggest that Article V was put into the Constitution in case the federal government needs reigning in is to suggest that amending the Constitution was considered the key to controlling the federal government.

Yet, almost everything the A5C proponents consider a transgression on the part of the federal government (e.g., spending to bust the budget), and that they claim an amendment would fix, is something the Constitution already outlaws! If the government were obeying NOW the clear mandates of the Constitution, none of these problems would be plaguing us!

Changing the Constitution is the wrong solution to an enforcement problem. The Constitution itself was designed to be, and explicitly portrays itself as, the chains for binding down the federal government.

Of course, we cannot just dismiss it as impossible, that some such amendment might have a beneficial effect. But the suggestion that legislators who disobey large swaths of the Constitution will somehow behave better when faced with an amendment, ought to have the burden of proof. Yet which of the A5C supporters has ever tried to prove this?

The “term limits” Con-con call is somewhat different: Instead of suggesting amendments are magically stronger than the Constitution itself, it suggests that Congress-persons who can run for re-election only so many times will magically behave better than those who can run any number of times. But folk who understand the meaning of “lame duck session” know that congress-people not subject to the ballot box are less likely to behave!

Not every call for an A5C claims, necessarily, that it will save us from government’s bursting of constitutional bounds. But every such call feels an obligation to downplay costs or risks that an A5C may present. And here, we shall see, is where proponents out-do themselves in making up fantastic claims.

The Danger

Proponents want to sell us the line that it is possible to put constraints, ahead of time, on an Article V constitutional convention — so that it will only consider certain topics, and perhaps only follow certain procedures. Yet, as Don Fotheringham explains so clearly and documents so tellingly, in America, the people, not legislatures, are sovereign — over constitutions as well as over governments. “We the People” wrote the Constitution; and that is who will propose amendments to it, or even total rewrites of it, if an Article V constitutional convention occurs.

Is that not what happens in every state today, when a state-constitutional convention is called? This popular-sovereignty principle is built into, not only the Preamble of our current Constitution, but also the very Declaration of Independence that brought the United States into being:

We hold these Truths to be self-evident … [t]hat to secure these rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed. That whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Forms, as to them shall seem most likely to effect their Safety and Happiness.

The one historic example we have for a constitutional convention at the federal level, was the one that produced our current Constitution. For proponents of another federal convention, then, it is quite embarrassing that writing a new constitution was not what that first convention’s delegates were sent there to do: they were merely to discuss, debate, and possibly propose some amendments to the then-current Articles of Confederation. But, as James Madison emphasized, the delegates represented the People of the United States — not the state legislatures — and therefore they had autonomy from all legislatures, whether state or federal, in determining the scope as well as the rules of their convention.

So, as Don Fotheringham emphasizes, every state legislator needs to be aware that the same popular sovereignty that applies to any state-constitutional convention these days, would apply also if we should ever have another federal constitutional convention. And that convention would therefore be no more under the control of either Congress or the state legislatures than was that 1787 Convention, which providentially gave us a far more perfect constitution than any convention could be expected to compose today in an environment dominated by pro-Big government media.

Unreliable Protection

One objection that arises at this point sounds reasonable, until you think about it: Since around two-thirds of the state legislatures are dominated by Republicans — goes the claim — we can rest assured that no radical proposal that does away with the Second Amendment, say, or rewrites the whole Constitution, will be ratified by three fourths of the legislatures.

However, there are two false assumptions here: First, the objection overlooks that a constitutional convention has authority, not only to set its own rules, but also to rewrite the rules of how its proposals are to be ratified. The Constitutional Convention of 1787 did exactly that; if it had not, it would have been harder to get our present Constitution ratified!

But even if the A5C resists the temptation to change the ratification rules, that leaves us with the rules laid down in Article V. And there, Congress can choose either of two routes: ratification “by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof.”

As an example that proves how dangerous and uncontrollable the second route is, Utah, the most pro-Prohibition state in the union, ratified the amendment that repealed Prohibition! Conventions, whether state or federal, are innately uncontrollable creatures; and thus, special interests may easily “hijack” them for purposes the People oppose.

Requested Actions:

  1. Contact the legislators in your state and urge them to oppose ANY call for an Article V Constitutional Convention. 2. Share this post with other concerned citizens.

For more support, see our “Expose the Article V Con-con Fraud”  campaign page, particularly the opinions of constitutional experts. Useful also, if confronting abusive, ad hominem arguments from the proponents, is an excellent recent piece by Wynne Coleman, of “No Convention of States NC,” on the growing use of such tactics. (Also, see the Heckler-Levin video rant linked therein.)

Terrorists Welcome!

It is doubtful whether any of us has ever seen such an audacious judicial usurpation, or one with such serious ramifications, as the decision of federal courts to interrupt President Trump’s temporary travel ban.

Settled case law for 200 years, not to mention the Constitution, says that the Congress and executive branch can regulate immigration in any way and to any extent they please; it is therefore NOT a sort of law upon which judges can bring “judicial review”!

In an article for Conservative Review, Daniel Horowitz, author of Stolen Sovereignty, provides overwhelming arguments as to why this is so.

The full case for why courts have no jurisdiction over Trump’s immigration order

If there remains ANY doubt on the settled nature of this legal point, this list of 16 quotations Daniel Horowitz has just culled from his research should settle the issue. In particular, we draw attention to quotes 10 and 11:

“The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.” [Lem Moon Sing v. United States, 158 U. S. 547 (1895)]

“[T]he decision to admit or to exclude an alien may be lawfully placed with the [p]resident, who may in turn delegate the carrying out of this function to a responsible executive officer … The action of the executive officer under such authority is final and conclusive. Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” [Knauff v. Shaughnessy, 338 U.S. 543 (1950)]

It will be a disaster if the Trump administration and the “conservative” media accept this perversion of judicial authority. Consider, for example, this less than encouraging response by Vice President Mike Pence to a question as to whether the judge also had the authority to stay the order:

“He certainly does, and that’s why the administration is complying with that order as we speak. And we’ll go through the process in the courts to get a stay of that order, so that, again, we can implement this action that is entirely focused on the safety and security of the American people.” — “Pence Defends Trump ‘Speaking His Mind’ About Federal Judge, Promises ‘All Legal Means’ to Challenge Ruling,” — abcnews (2-14-17)

Please share this post widely!

 

If It Ain’t Broke, Don’t Fix It!

Pity the poor proponents of an Article V con-con. How could they ever have happy holidays?

For they are self-impaled on the horns of a brutal dilemma. They must argue either:

  • that amending our Constitution will somehow, magically, turn Constitution-despising government officials into Constitution-obedient ones; or else,
  • that the Constitution, as it stands, has some significant flaws that have allowed the federal government to get “out of control.”

Very oddly, though, despite such a daunting dilemma you never see a con-con proponent backing off from his or her insistence that we must amend our Constitution — and, that it needs to be done through a (colossally dangerous) Article V constitutional convention! Only this magic (albeit never-before-used) formula will save us from our “out of control” government, they keep saying.

Take, for example, the odd insistence of Mr. Nick Dranias.

Nick Dranias’s criticism of the U.S. Constitution

Mr. Dranias, who leads Compact for America, has apparently enough sense to realize that though proving the second point (flaws in the Constitution) would be a formidable challenge, proving the first is clearly impossible. He has thus, almost alone, taken on the challenge of proving that our Constitution is to blame for our bloated federal government.

Unfortunately, Dranias’s case rests on a misconstrual of the Constitution and of the history of our federal government’s borrowing and spending.

According to Dranias (on his Compact for America website), “The Constitution as it exists fully authorizes unlimited spending, taxing and borrowing in support of the enumerated powers.”

He adds quickly, “Of course, the federal government is doing much much more than what the Founders thought the enumerated powers authorized. But that is politically inevitable when you give elected officials an unlimited credit card with which they can promise anything to get elected at no immediate cost to current voters!”

Dranias is very fond of using this phrase “unlimited credit card” to describe the Constitution’s lack of explicit limitation on federal-government borrowing. He means, apparently, that they can borrow as much as they want, at any time, with no penalties felt at all soon.

The metaphor is clever but misleading. A look at the actual historical data on U.S. federal government debt makes clear how misleading it is.

How did we REALLY get our mountain of national debt?

If the Constitution is an “unlimited credit card” that allows Congressmen to buy their way to re-election, how does Mr. Dranias explain the fact that our national debt was relatively under control until the Vietnam War was winding down, and then suddenly exploded in the early 1970s?

Even though there was concern over our growing national debt before the 1970s, compared to today’s enormous debt, the debt was miniscule. Although it grew significantly during World War II, a time-chart of the debt will show that it grew practically none between 1945 and 1970. Not until the early 70s did our debt begin its exponential climb to its current astronomical heights.

Why was that? Were U.S. Congressmen generally so obtuse before 1971 or so, that they never noticed the Constitution gives them an “unlimited credit card” with which to buy votes? Or were they perhaps all angelic statesmen, before that time, who kept to the Constitution’s spending-bounds out of the goodness of their hearts?

Or, was there perhaps something that happened in the early 70s that opened the spigot for unlimited government borrowing? There was indeed: On August 15, 1971, President Richard Nixon made a catastrophic structural change to our monetary and banking system. This change allowed for virtually unlimited creation of (new) money by the Federal Reserve System, to lend to the government (at below-market-level interest rates).

For it was on that date that Nixon “shut the gold window” to foreigners,

refusing to let foreign central banks redeem their dollars for gold, facilitating the devaluation of the U.S dollar which had been fixed relative to gold for almost thirty years. While not strictly a default on a US debt obligation, by closing the gold window the US government abrogated a financial commitment it had made to the rest of the world at the Bretton Woods Conference in 1944 that set up the post-war monetary system. At Bretton Woods, the United States had promised to redeem any and all U.S. dollars held by foreigners — later limited to just foreign central banks — for $35 dollars an ounce. This promise explains why the Bretton Woods monetary system was called a “gold exchange standard” and why many believed the US dollar to be “as good as gold.” (http://triplecrisis.com/a-first-default-closing-the-gold-window/)

Redeemability is what a “bank note” is all about: It is simply a bank’s I.O.U. for the bearer’s “demand deposit” of true, commodity money (namely gold, in this case). It is understood to be strictly redeemable in that money, on demand, to whomever is bearing the note.

Perusal of a 1934 Federal Reserve 10-dollar note, for example, shows that the note declares it is “legal tender for all debts, public and private, and is redeemable in lawful money [initially, actual dollars, of gold or silver, or redeemable U.S. Treasury Gold or Silver Certificates] at the United States Treasury, or at any Federal Reserve Bank.” It states further that “The United States of America will pay to the [note’s] bearer on demand Ten Dollars.” (interpolations in square brackets ours.)

President Franklin Roosevelt had already “shut the gold window” to U.S. citizens back in 1933, allowing the banks to forego honoring their commitment to redeem the notes in gold (or Gold Certificates). But at that time they were still exchangeable for U.S. Treasury-issued Silver Certificates; and those were redeemable, in silver coins.

Then in 1968, President Johnson and Congress had nullified the pledge to redeem the Silver Certificates — again, for U.S. citizens only. But not until Nixon “shut the gold window” to foreigners also in 1971, were U.S. “dollars” — including, paper Federal Reserve “Notes” — completely unshackled from redeemability in precious metal.

Did that major change indeed open the spigot for creation of Federal Reserve paper “dollars”? Yes, of course: If banks no longer have to redeem their “notes” at all, yet those notes are “legal tender,” they will really go to town with their “money”-printing presses! They’ll be more than happy and ready to loan these fraudulent paper “notes” into circulation.

One may readily confirm that that is what has happened, by glancing at a time-chart of the M3 U.S. “money” supply: Clearly it was right around 1971 that our supply of (paper) “money” began to increase by leaps and bounds. Before then, the “money” supply was somewhat limited by the gold supply in the Federal Reserve’s vaults.

Did the Constitution permit this debt disaster?

So, is Mr. Dranias correct, in blaming our national-debt disaster on the Constitution? No — unless the Constitution permits government to declare irredeemable paper money a “legal tender” in payment of debts. For only if they are declared “legal tender” must such fraudulent, irredeemable and therefore essentially worthless notes be accepted as real “dollars,” when the government (or anyone else) offers them in payment of a “dollar”-denominated charge or obligation.

But in fact, not only does the Constitution not permit this; it forbids it. At the time of its ratification, the states had created an inflationary crisis by declaring a burgeoning mountain of irredeemable bank notes “legal tender.” This is why the Constitution forbade states to “make any thing but gold and silver coin a tender in payment of debts” (Art. 1, Sec. 10). That provision brought an end to the inflation.

Naturally, the Founders would not have permitted the federal government to step in and re-create this disaster of worthless “legal tender.” But they did not feel it needful to state explicitly that the federal government is (with the states) forbidden to do this, since (as the Tenth Amendment says) any power not explicitly delegated to the federal government, by the Constitution, is understood not to be granted to it.

Thus the Constitution also did not permit the government to take these other actions that were crucial in its drive to substitute paper, irredeemable currency for our sound money:

  • creation of the Federal Reserve System, in 1913;
  • “shutting the gold window” to U.S. citizens, in April 1933;
  • forbidding them, at that same time, to own or use monetary gold; and
  • the final, complete repudiation of our currency’s redeemability, in 1968 and 1971.

So it turns out that, thru his misdirecting of the blame, Mr. Dranias is implicitly exonerating our leaders and the Fed, and irresponsibly risking our liberty. For the Constitution is not the problem. Disobedience to the Constitution is!

Tragically, the constitutional requirement to limit government to its enumerated powers has virtually disappeared from media-led political discussion, in favor of a dangerous “how much can we afford?” debate. Without an informed electorate forcing its representatives to adhere to the Constitution, the government’s substitution of irredeemable Federal Reserve bank notes for our once-sound monetary system has supported a massive explosion in the national debt. Our need is not to alter, but to return to, that wisely crafted form of government that our Founders outlined so clearly.

For Whom the Court Toils

What most Americans considered unthinkable just a few decades ago — Supreme Court mandated recognition of same-sex marriage —is now reality. Those concerned about the widespread attack on traditional morality and the family would do well to learn more about what the Supreme Court has done, what drove the decision, and what can and must be done to return America to Constitution-based Federal-Court rulings.

A Flagrant Judicial Usurpation

There are few Supreme Court rulings, we must assume, where a large number even of those supporting the decision feel compelled nevertheless to repudiate, publicly, the Court’s reasoning. Yet there was widespread, serious dissatisfaction among those who longed for the Court to vindicate same-sex marriage and who read its opinion.

One of the clearest summaries of the consensus spanning the political spectrum comes from just such a same-sex-marriage supporter:

To phrase things delicately, the Supreme Court’s recent decisions in King v. Burwell and Obergefell v. Hodges are unequivocally horrendous. Legal textualists and political conservatives will remember these majority opinions as among the worst of the twenty-first century. While Kelo v. New London and NFIB v. Sebelius were equally despicable, these cases at least were based on plausible, albeit highly flawed, interpretations of existing law. King and Obergefell, in contrast, are purely results-oriented decisions that are at best maladroit workmanship and at worst flagrant judicial usurpations of legislative authority.

Was Obergefell really an instance of well-intentioned but “maladroit workmanship” or instead one of ill-intentioned, “flagrant judicial usurpation of legislative authority”? And if the latter, what was the real motive?

An Unexpected Argument

Same-sex-marriage supporters had generally expected the Court to pursue the line of argument usually taken in same-sex marriage cases that had been brought in state courts. That line was based on the Fourteenth Amendment’s “equal protection” clause: That clause forbids every state to “deny to any person within its jurisdiction the equal protection of the laws.”

The contention was that, given this clause, marriage laws should not treat homosexual couples any differently than they treat heterosexual couples.

However, for reasons that we explain in a separate article, an argument based on “equality” alone would have been quite frail and susceptible to devastating criticism. Another main argument was needed. And for this, the majority availed themselves of the long discredited appeal to the Fourteenth Amendment’s “substantive due process” clause.

And, in doing so, the majority, led by Justice Kennedy, relied on a slippery meaning-change for the term marriage.

Redefining Marriage

In the view of Chief Justice Roberts, who strongly opposed the ruling, that slippery meaning-change was, in fact, the real point:

The fundamental right to marry does not include a right to make a State change its definition of marriage. … There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these [current] cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”? … These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here.

Roberts summarized his objection to the very thinly argued case of the proponents: “The majority’s decision is an act of will, not legal judgment.” The other dissenting Justices seemed to agree.

For Whom, REALLY, Was This Ruling Made?

But why would a majority of the Supreme Court risk their judicial reputation on such an obviously unconstitutional decision – which is already seen widely as such? What goal would make it worthwhile? And in particular, if the justices didn’t see “dignity”-seeking gays as the constituency that their ruling was serving, whom did they see it as serving?

A scholarly article, by Douglas NeJaime, in The Yale Law Journal in Sept. 2013, helps us answer that question. That article approved thoroughly of Justice Kennedy’s redefinition of marriage as expressed in United States v. Windsor (2013, striking down the Defense Of Marriage Act), also using the “substantive due process” approach to gay rights that he had first displayed in Lawrence (2003). And the article argues that the redefinition is responding to a revolutionary movement:

This Essay relates Windsor to a model of marriage ascendant over the course of the last several decades and to LGBT advocacy that has mapped same-sex couples onto that model. … a shift from a marriage model rooted in procreation and gender differentiation to one characterized by mutual emotional support, economic interdependence, and community recognition. … Justice Kennedy’s treatment of marriage in Windsor fits within this trajectory….

Of course, the Court is not conceptualizing marriage and its relationship to same-sex couples in a vacuum. Instead, it is responding to legal, cultural, and demographic shifts relating to marriage, as well as to LGBT advocates’ appeal to those shifts to claim rights for constituents. … Beginning in the 1980s, LGBT advocates mapped same-sex couples onto ascendant marital norms that stressed adult romantic affiliation and emotional and financial interdependence—marriage’s private dimensions….

Justice Kennedy’s rendering of marriage in Windsor is responsive to LGBT advocates’ contextualization of same-sex couples within extant marital norms. [Emphasis ours.]

Hey! Hang on a minute: Who are these “LGBT advocates,” to whose “contextualization of same-sex couples within extant marital norms” Kennedy’s new treatment of marriage “is responsive”?

Well, there were the more open advocates, and the more secretive ones: but they had all been pushing, for many years, the strategy of holding out same-sex “marriage” as just another, valid kind of marriage. Michael Gerson, exulting over the Obergefell v. Hodges ruling, credits two of the better known advocates of this strategy:

Why has the gay rights movement been so dramatically successful? Certainly, the people who came out to family and friends — often at considerable risk and cost — humanized an abstract debate. Fictional gay characters — see “Glee” and “Modern Family” — did much the same.

But perhaps the most significant shift in strategy came from public intellectuals such as Jonathan Rauch and Andrew Sullivan, who urged gays to embrace the conventional, bourgeois practice of marriage. What had seemed to many Americans a sexual liberationist movement requested access to the institution designed to limit sexual freedom for the sake of social order and effective child-rearing (while delivering joys that arise only out of commitment). Many gay rights advocates essentially made conservative arguments — concerning the individual and social benefits of faithfulness — to secure their legal goal.  It is a form of gay rights that Middle America — already inclined to live and let live — could readily embrace.

Then there were the more private “LGBT advocates” — the revolutionaries making the war plans and directing the troops. If anyone doubts the existence of a more or less secretive cabal of LGBT war-planners, they should read articles that have been documenting their subversive agenda since the 1990’s.

In 1989, Marshall Kirk and Hunter Madsen, professionals in neuropsychiatric research and commercial advertising, respectively, published After the Ball: How America will conquer its fear and hatred of gays in the ’90s. Their book constituted a manual for the “overhauling of straight America.” In particular, they mapped out a strategy for deceptively promoting homosexuality in entertainment, the media, and education under the guise of a struggle for homosexual “rights”:

At least at the outset, we seek desensitization and nothing more. You can forget about trying right up front to persuade folks that homosexuality is a good thing. But if you can get them to think that it is just another thing — meriting no more than a shrug of the shoulders — then your battle for legal and social rights is virtually won.

But their ultimate objective was the conversion of straight America:

[B]y Conversion we actually mean something far more profoundly threatening to the American Way of Life…. We mean conversion of the average American’s emotions, mind and will, through a planned psychological attack, in the form of propaganda fed to the nation via the media. We mean ‘subverting’ the mechanism of prejudice to our own ends — using the very processes that made America hate us to turn their hatred into warm regard — whether they like it or not. (p. 153)

According to Douglas NeJaime, it is to such (revolutionary, subversive) “advocates” that Justice Kennedy’s new treatment of marriage “is responsive.”

In short, the Supreme Court ruling was not an attempt to enforce ostensibly Constitutional rights. Its intention was a revolutionary one, and it had no other motive.

What, Then, Is To Be Done?

Therefore, the solution is not in another Court case or better arguing before the Court. Justice Alito was unfortunately mistaken in believing that his “colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own.” Yet in the same passage he shared some perceptive concerns about the future of American jurisprudence:

Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. …

Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.

That last statement is exactly right. This Court has thrown out the Constitution and the American system of jurisprudence. Its decisions no longer have anything to do with them.

And lest anyone think that the revolutionary assault is over, they need to realize that revolutionaries are never satisfied, short of total revolution. With any victory, standard revolutionary practice is just to up the ante.

Consider the story in the July 3, 2011 Northern Colorado Gazette, “Pedophiles want same rights as homosexuals”:

Using the same tactics used by “gay” rights activists, pedophiles have begun to seek similar status arguing their desire for children is a sexual orientation no different than heterosexual or homosexuals.

Critics of the homosexual lifestyle have long claimed that once it became acceptable to identify homosexuality as simply an “alternative lifestyle” or sexual orientation, logically nothing would be off limits.

The story documents studies and federal actions already underway leading up to just such legitimization of pedophilia. It would be a great mistake to put beyond this current Supreme Court the overturning of state laws against pedophilia.

This Court understands only power – and, the ability and will to use it. Therefore, the only solution available to us is to learn about, and then to show the courage and ability to wield, the powers that we have under the Constitution for the reining in of a rebellious, or even revolutionary Supreme Court.

As Don Fotheringham has explained, impeachment is not the only solution – although certainly it is one route available. Another, of which most Americans are unaware, is to restrict the appellate jurisdiction of the Supreme Court. Don Fotheringham explains the means that the Constitution provides for curbing a federal judiciary run amok, in the lead article for our “Campaign for Decency – Curb the Courts.”

This concerted-action campaign needs the volunteer membership of many concerned Americans, to help convince Congress to reign in this revolution-seeking Supreme Court. Moreover, an out-of-control Supreme Court is only one part of a larger revolutionary assault that must be confronted in its entirety. We invite readers to consider the program of Freedom First Society.

 

 

 

 

The Court’s Strange Argument in Obergefell

Same-sex-marriage supporters had generally expected the Supreme Court to pursue in Obergefell v. Hodges the line of argument usually taken in same-sex marriage cases that had been brought in state courts. That line was based on the Fourteenth Amendment’s “equal protection” clause, which forbids every state to “deny to any person within its jurisdiction the equal protection of the laws.”

The contention was that, given this clause, marriage laws should not treat heterosexual couples any differently than they treat homosexual couples. (One writer distinguished between this line of argument and that of “non-discrimination.” But since “equality” under the law implies non-discrimination in the application of the laws, most writers treated these two as basically the same argument.)

As at least one writer mentioned, the majority in Obergefell did vaguely “nod to” this previous line of argument. For example, the majority framed the situation thus in the Syllabus (i.e., summary) of their opinion: “The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right.”

But their “nod” to equality seemed to be more or less window dressing for the real argument. As Chief Justice Roberts writes,

The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding. … Yet the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position….

And anyway, in retrospect it is clear that that to use “equality” as a serious line of argument would have failed spectacularly. That becomes obvious from a reading of the four dissenting justices’ opinions.

One reason it would have failed is that non-discrimination or equality of access to certain legal benefits that the government has attached to marriage, though potentially an issue, was not what the petitioners were asking for: again to quote Chief Justice Roberts,

It is important to note with precision which laws petitioners have challenged. Although they discuss some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits.

A second reason for it to fail is that the idea of non-discriminatory application of laws of marriage, as that had been argued (successfully) in a number of “right to marry” cases, cannot apply to same-sex couples, because, as Roberts points out, they all had to do with “marriage” as traditionally defined:

None of the laws at issue in those [‘right to marry’] cases purported to change the core definition of marriage as the union of a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race.” … Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases “presumed a relationship involving opposite-sex partners.”

In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process.

A third reason for the “equality” line of argument to fail is that it could be possible to argue that same-sex couples did not have equal treatment under the marriage laws – and thus did not have equal access to its benefits – but only if the argument assumed the radically altered definition of marriage which was, in effect, what the petitioners were requesting. But in that case, the majority would clearly be arguing in a circle – which is a well-known type of fallacy.

Justice Alito saw this difficulty clearly (interpolations and emphasis ours):

Attempting to circumvent the problem presented by the newness of the [same-sex marriage] right found in these [recent state-level] cases, the majority claims that the issue is the right to equal treatment. Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying that right to same-sex couples. This reasoning is dependent upon a particular understanding of the purpose of civil marriage. Although the Court expresses the point in loftier terms, its argument is that the fundamental pur­pose of marriage is to promote the well-being of those who choose to marry. Marriage provides emotional fulfillment and the promise of support in times of need. And by benefiting persons who choose to wed, marriage indirectly benefits society because persons who live in stable, fulfilling, and supportive relationships make better citizens. It is for these reasons, the argument goes, that States encourage and formalize marriage, confer special benefits on married persons, and also impose some special obligations. This understanding of the States’ reasons for recognizing marriage enables the majority to argue that same-sex marriage serves the States’ objectives in the same way as opposite-sex marriage.

This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.1

Thus, the openly circular nature of the only “equal protection” argument they could have offered, made it inadvisable to use that line of argument at all seriously. The majority needed another main argument – or at least, one that would take the lion’s share of the scrutiny, so people wouldn’t notice the obvious weakness in the “equality” argument.

Switch to Plan B

What they did was bring in the idea of a “fundamental right to dignity”. It could hardly be denied, after all, that same-sex couples might feel deprived of dignity if not given access to marriage.

To find that “right” in the Constitution, the majority invoked the Fourteenth Amendment’s “due process” clause, interpreted as guaranteeing “substantive due process.” We wrote about “substantive due process” in our article about the idea of a “living” Constitution. This specious and empty concept, which has given rise to many federal court cases, was well summed up by Justice Scalia in his dissenting opinion in Obergefell: “It stands for nothing whatever, except those freedoms and entitlements that this Court really likes.” It is thus just a blank check for judicial activism.

Though on the surface this seems a dubious change of tactics, at least a couple of scholars had noticed its potential, and already written journal articles in favor of it. Interestingly, these writers seem to be not only of a more scholarly ilk, but also more interested in tactics and bringing about radical change, than in same-sex couples’ felt need for “dignity” or “equality.”

Consider for example this abstract (summary) of a May 2012 journal article by Peter Odell Campbell:

This essay discusses Justice Anthony M. Kennedy’s choice to foreground arguments from due process rather than equal protection in the majority opinion in Lawrence v. Texas. Kennedy’s choice can realize constitutional legal doctrine that is more consistent with radical queer politics than arguments from equal protection. Unlike some recent critiques of Kennedy’s opinion, a queer rhetorical analysis of Lawrence reveals a futuristic, always-open-to-change vision in Kennedy’s rhetorical framing of constitutional law that is significantly less damaging to possibilities for “queer world making” in the United States than other contemporary US judicial arguments of and about sexuality.

For “futuristic, always-open-to-change vision” we can read, “such a vague notion of ‘due process’ it can never be pinned down or refuted.” But note especially the author’s dominant interest in “radical queer politics” and “‘queer world making’.” (The above article is entitled, “The Procedural Queer: Substantive Due Process, Lawrence v. Texas, and Queer Rhetorical Futures.”)

Another scholarly article, by Douglas NeJaime, appeared in The Yale Law Journal in Sept. 2013, with more reserved language than the one just cited but with apparently the same, mainly tactical motivation. It approved thoroughly Kennedy’s continuation, in United States v. Windsor (2013, striking down the Defense Of Marriage Act), of the “substantive due process” approach to gay rights that he had first displayed in Lawrence (2003). And the article seemed very optimistic that this approach would be a powerful one in future, same-sex-marriage cases.

The Subtle Fallacy in the “Substantive Due Process” Approach

However, if only very few commentators seem to have noticed a weakness in the “equal protection” line of argument, even fewer have noticed one fatal weakness in the “due process” line of argument (besides the widely doubted “substantive due process” notion). That overlooked but serious fallacy is related here also to the desire to change the meaning of “marriage.”

But in this argument, the fallacy is that the meaning of that key term is altered in the course of the argument. Such a key term’s meaning-change within an argument is called “equivocation” – another well-known type of logical fallacy.

The argument goes like this, after all: “The laws at issue have kept these petitioners out of the marriage bond. But marriage is a right that is so fundamental it should be available to all couples, regardless of gender. So, those laws should be thrown out.”

The overlooked problem with this “fundamental right” argument is that its first premise is clearly false unless in it the term marriage means traditional marriage (i.e., defined as between a man and a woman). Yet, the second premise is clearly false unless in it the term means something else, i.e., the watered-down meaning of “marriage” that the majority was arguing for. Thus, either the argument contains at least one false premise; or else, it suffers from the fallacy of equivocation.

This fallacy of equivocation would more likely have been noticed, if the “equality” issue had not been invoked also and claimed as relevant. So that is probably why the majority brought it up. By mentioning both lines of argument, and claiming a close connection between them, they used each one as an effective smokescreen for the (otherwise more obvious) fallacy in the other.

_____________________________________________________________________________________________

Note 1: To give the Devil his due, the majority did actually – in one place and in a seemingly token gesture (three sentences long) – argue that for all those millennia, the concept of marriage was really not “inextricably linked” to the idea of procreation. In short, the definition of marriage as only between people of opposite genders does not accurately define the essence of the age-old concept! The true meaning of marriage is no less applicable to homosexual couples! Here is their entire argument (pp. 15-16 in their opinion, emphasis ours):

That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has many aspects, of which childbearing is only one.

So, all judges down through the millennia stand corrected! But unsurprisingly, the audacious, little argument is fallacious: it attacks a “straw man”, i.e. a position its opponents do not really hold. It assumes, falsely, that the traditional definition of marriage entails “an ability, desire, or promise to procreate.” But in Justice Alito’s paragraph next after those just quoted, he states the traditional position more accurately (emphasis ours):

Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabulary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.

The definition of “marriage” that the States were using was thus concerned with, not “an ability, desire, or promise to procreate”, but “potentially procreative activity.” Thus, it has in view only opposite-sex couples, whose sex is naturally “potentially procreative activity.” But this definition, which is perfectly rational and historically correct, escapes completely the force of the majority’s straw-man argument, since it has in view any and all normal sex between persons of opposite genders (but leaves out of view, really, all abnormal, i.e. not-potentially-procreative “sexual” activities, e.g. anal and oral “sex”).

Nullification’s Five Deadly Secrets

An old theoretical “remedy” for overgrown or tyrannical federal government, namely the states’ “nullification” of unconstitutional laws or rulings, has gained some new advocates of late.

Of course, any proposed solution to that serious problem — and particularly one purportedly championed by Thomas Jefferson (see “The Founders’ Battle over the Nullification Heresy”), like this one — is worth examining by conservatives.

It is quite natural, therefore, to ask such basic questions about nullification as:

  • What does “nullification” mean, exactly?
  • Is it legal?
  • Is it even a viable remedy — especially in today’s political environment, dominated by a collectivist media?
  • What risks, costs, or downsides does it involve?
  • Are there preferable alternatives — some less risky, for example, or perhaps more legal?

Unfortunately, however, we find that the proponents of nullification avoid these responsible questions — or else, they answer them in a manner that evades the great mass of relevant evidence. Our purpose in this article will therefore be to answer these five questions, directly and clearly and with plenty of support.

  1. What does “Nullification” mean?

Nullification’s proponents have almost always used this term with a sweeping lack of precision.

We should point out first that, despite the form of the name, it does not mean simply a state’s pronouncement that they have found a federal law or ruling unconstitutional, and therefore null and void. Nobody has used the term, today or in the past, in that sense; it means more. 1

Thomas Woods, Jr., perhaps today’s foremost proponent of nullification, seems to have quite a shaky grasp of the term’s meaning. In a website that goes under his name, he writes, “State nullification is the idea that the states can and must refuse to enforce unconstitutional federal laws.”

This definition is sadly inaccurate, both practically and historically. First, it assumes that the federal government is always dependent on state governments to enforce its laws. Second, it ignores the very long-established American judicial ruling that the federal government cannot require state governments to help enforce any federal laws. (This principle even has a name, “the Anti-Commandeering Doctrine.”) So, clearly that cannot be the sort of situation Woods intends “nullification” to address. 2

“Nullification” goes also beyond states’ “interposing” when the federal government exceeds its constitutional limits. This latter term was used by James Madison in the Virginia Resolution (passed Dec. 24, 1798), which was a response to the unconstitutional and quite tyrannical “Alien and Sedition Acts.” The Resolution stated that in such cases, states “have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights and liberties, appertaining to them.” (See, also, “The Founders’ Battle over the Nullification Heresy.”)

Indeed, Madison had already decided that states do not hold a legal right to pronounce an unconstitutional federal law, authoritatively, to be “void, and of no force or effect.” Therefore, lest anyone draw the wrong conclusion, he had that last phrase struck from the Resolution before the Virginia legislature passed it. So, although both terms have often been used imprecisely, and sometimes been confused with each other, “nullification” goes beyond “interposition.”

What then is “nullification” – and where and when was the possibility first raised? Most likely the first discussion of the concept — though he did not use the term “nullification” — was in Federalist Papers 15 & 16, written by Alexander Hamilton.

In Paper 16, Hamilton distinguished carefully “between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or TO ACT EVASIVELY, and the measure is defeated.” Hamilton continued:

But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular [i.e., state] governments could not interrupt their progress without an open and violent exertion of an unconstitutional power…. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. (Interpolations and emphasis ours.)

The term “nullification” was coined in 1798, with the latter kind of law in view (specifically, the Alien and Sedition Acts: see “The Founders’ Battle 0ver the Nullification Heresy.”) Thus, the whole idea of nullification is to take the measures necessary to prevent the law from being enforced within the state; and that practically, such “measures” will entail the use of force — or at least, the credible threat of it. As Wikipedia points out,

In writing the Kentucky Resolutions, Jefferson warned that, “unless arrested at the threshold,” the Alien and Sedition Acts would “necessarily drive these states into revolution and blood.” … George Washington was so appalled by [the resolutions] that he told Patrick Henry that if “systematically and pertinaciously pursued,” they would “dissolve the union or produce coercion.” [34]  [Emphasis ours.]

Willingness to bring about one or both, however, is definitely characteristic of “nullification.” Thus, a recent example of actual nullification would be the move by several states to make it illegal — indeed, a felony — to enforce federal gun laws within their borders. So, that kind of action is what we will discuss in the remaining sections.

  1. Is nullification legal?

Even on the face of it, nullification seems illegal. In the case of unconstitutional federal laws, nullification would involve not only allowing disobedience to federal law, on the part of either the state or its citizens (or both), but also the enforcement of a prohibition on any enforcing of that federal law. Such behavior is in direct violation of the Supremacy Clause (Article VI, paragraph 2) of the Constitution:

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, anything in the constitution or laws of any State to the contrary notwithstanding.

What, then, about nullification of Constitution-twisting judicial rulings? Are we legally obligated to accept them, or can we discount and nullify them?

Explicitly, the Constitution gives federal courts jurisdiction in certain matters: it gives the Supreme Court original jurisdiction in a few matters, and appellate jurisdiction, “both as to law and fact,” over all other federal issues — including cases arising under the Constitution or the laws of the U.S. — “with such exceptions, and under such regulations as the Congress shall make.” (Article III, Sec. 2; emphasis added).

The inescapable conclusion is that authoritative decisions about the constitutionality of federal laws are the province of the federal courts, not the states. This is the conclusion of an overwhelming weight of authorities and experts – including, as we have already seen, James Madison. Both the Constitutional Convention, the state ratifying conventions, and over half a dozen Federalist Papers show clearly that the founders of our Constitution attributed this authority only to the federal courts. Also, this is how the federal courts themselves have repeatedly, consistently ruled.

Significantly, no other state went along with Kentucky or Virginia, in response to the 1798 resolutions. On the contrary, four states did nothing, seven states responded by formally rejecting the Kentucky and Virginia resolutions, and three states passed resolutions expressing disapproval of them. At least six states affirmed that the question of constitutionality of a federal law lies with the federal courts, not the states. (See, also, “The Founders’ Battle over the Nullification Heresy.”)

Later, prior to the Civil War, a few states – both Southern and Northern ones — did claim the right of nullification. Its most notable invocation, supported by the Vice President, John C. Calhoun from South Carolina, was that state’s declaration that the federal Tariffs of 1828 and 1832 were unconstitutional and thus null and void within the state’s boundaries. This led to the so-called Nullification Crisis (1832-33). Although President Andrew Jackson was prepared to quash this uprising by force, that turned out to be unnecessary.

Also, some states tried to nullify fugitive-slave laws within their borders. The Supreme Court overturned these efforts, in such cases as Prigg v. Pennsylvania (1842) and Ableman v. Booth (1859), the latter of which was the Court’s most thorough treatment of the nullification issue to date.

Much later, in 1954, the Supreme Court’s school-desegregation decision in Brown v. Board of Education of Topeka led to a resuscitation of states’ claims to a right of nullification or interposition. Arkansas, Virginia, Louisiana, and Florida passed interposition and nullification laws. The Supreme Court rejected Arkansas’ law, on the usual grounds, in Cooper v. Aaron (1958).

From the Civil War until the 1950’s, however, virtually no one claimed such a right for the states. Starting from the drafting of the Constitution and until the 1950’s, the overwhelming consensus was that according to the Constitution, states do not have a right of nullification, for reasons we have stated. In short, it is illegal.

  1. Is nullification a viable remedy?

Given this understanding of what nullification is, and of its illegality, we are in a much better position to consider how viable an approach it is.

So what are the realistic chances for success, for a state wishing to resist the federal government forcefully? That depends of course on how determined the federal government is to enforce its law or ruling.

There are very few examples, historically, of a case where a state has put the nullification theory to a practical test. Perhaps the only example is Pennsylvania’s reaction to the first Supreme Court case that dealt with nullification, United States v. Peters (1809). The Pennsylvania legislature had originally passed a law claiming that a federal court’s decision in an earlier case had been unconstitutional and was therefore “null and void.”

In the Peters case, the Supreme Court overturned that Pennsylvania statute, denying that the state had the authority to nullify a federal court’s judgment. What happened next deserves careful consideration (the footnotes referenced are in the Wikipedia article we quote):

In response, the Governor of Pennsylvania called out the state militia to prevent enforcement of the Supreme Court’s judgment. However, the U.S. Marshal summoned a posse, carried out the Supreme Court’s order, and arrested the leaders of the state militia. The Pennsylvania legislature passed a resolution declaring the action of the Supreme Court unconstitutional, invoking states’ rights, and appealing to the other states for support.[42] Eleven states responded by disapproving Pennsylvania’s attempted nullification. No state supported Pennsylvania.[43] The Governor of Pennsylvania made a plea to President James Madison to intervene, but Madison affirmed the authority of the Supreme Court. The Pennsylvania legislature backed down and withdrew the militia.[44] Thus, Pennsylvania’s attempt to nullify the federal court judgment failed.[45]

Isn’t that the result any state can expect, if it tries something similar? Certainly it is, unless that state has much better support for its cause, from the American public in general, than Pennsylvania enjoyed in 1809.

But there is another crucial factor that nullification proponents conveniently ignore that virtually guarantees the outcome. The proponents refuse to acknowledge the determined “Big Government” forces, agendas, and deceptive tactics that have misled the public over decades into accepting the step-by-step erection of our current massive unconstitutional federal bureaucracy. The grip of those forces on our media and Washington would in no way be impacted by attempts at State nullification. In fact, attempts at nullification likely aid that agenda (see point 4).

So today, that “much better support” is too much to expect. The public is far too ignorant of and about the Constitution, and too gulled by the Establishment-controlled media, to form any correctly targeted, informed resistance — or even to be motivated to do so. (Nor would it help a state’s chances of success, in the case of nullification, that the federal government would be legally correct.)

Against a determined federal government, especially one supported by our Establishment-controlled media, today no state could reasonably hope to succeed in an attempt at nullification.

  1. What risks, costs, or downsides does it involve?

We should qualify our previous statement, however: no state could hope to do so, without first preparing the way by partaking in a wisely-targeted, well-organized, nationwide, successful effort to educate and inform the public.

In today’s environment, that educating and informing would certainly need to be about both our Constitutional system and the well-organized, well-funded, internationalist conspiracy seeking to destroy that system.

When considering the costs of any rational solution today, we must point out that taking part — and succeeding — in such a nationwide educational effort is a necessary price. Unfortunately, today’s proponents of nullification do not at all follow their hero Thomas Jefferson, in his almost constant emphasis on the prerequisite of such education:

The most effectual means of preventing [the perversion of power into tyranny are] to illuminate, as far as practicable, the minds of the people at large, and more especially to give them knowledge of those facts which history exhibits, that possessed thereby of the experience of other ages and countries, they may be enabled to know ambition under all its shapes, and prompt to exert their natural powers to defeat its purposes. — Thomas Jefferson: Diffusion of Knowledge Bill, 1779. The Writings of Thomas Jefferson, Federal Edition 2:221, Papers 2:526

If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be. — Thomas Jefferson to Charles Yancey, 1816. The Writings of Thomas Jefferson, Memorial Edition (ME) 14:384

If once [the people] become inattentive to the public affairs, you and I, and Congress and Assemblies, Judges and Governors, shall all become wolves. It seems to be the law of our general nature, in spite of individual exceptions. — Thomas Jefferson to Edward Carrington, 1787. ME 6:58

I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power. — Thomas Jefferson to William C. Jarvis, 1820. ME 15:278

Most importantly, if such education were accomplished, there would be no need for nullification — completely legal recourses would be practical (see 5, below), thus avoiding the very serious downsides to nullification.

Even presuming an informed electorate, there is obviously a substantial amount of other cost or risk in any threat, or actual use, of force against a hostile government. Jefferson eventually recognized (see “The Founders’ Battle over the Nullification Heresy”), that an actual show of force might even turn potential comrades into our enemies.

But in addition to the obvious risks of military humiliation or defeat, there are some less obvious, yet impactful, downsides we should consider:

  • War is a changer of the societies that take part in it, even those to which it does not do great military or economic damage.
  • War is a ready excuse for the government to expand its power. In today’s environment, we cannot even rule out the possibility that the eventuality of civil war could be used by internationalist Insiders as a pretext to call for international military intervention. This could happen, on our own soil, under the aegis of N.A.T.O. or of the U.N. The loss of liberty that could readily ensue is a frightful prospect.
  • Another risk that attaches to any illegal activity, and which many people may not have considered, is loss of respect for the law, and for the enforcers of the law. These are real and quite corrosive effects that even a small amount of common or accepted law-breaking creates. We quote here from Freedom First Society’s founding book, Organize for Victory!

Otherwise responsible citizens weaken the rule of law, and so its protective shield, when they put themselves above the law by deciding which laws they will obey and which they will ignore. The rule of law is such an important asset in any civilization that even a significant corruption of the law does not justify either civil disobedience or treating the law with contempt.

Respecting the law does not mean that we should regard all laws as just and accept them as such. Certainly many official acts are not legal or even constitutional.   However, when there are problems within the legal system, rather than promoting cynicism, the responsible approach is to observe the law and work to make it more worthy of respect….

Legal systems are major social accomplishments. They are not put together during periods of chaos and confusion. We can preserve the umbrella of safety the law provides only by helping to see that the law is respected.

As a strategy, civil disobedience is not only wrong, it is also dangerous and counterproductive. Its widespread practice leads to anarchy, while providing an easy path to tyranny. In fact, lawlessness paves the way for a police state. (pp. 198,199)

  1. Are there preferable alternatives to nullification — say, less risky, and/or more legal?

Even Thomas Jefferson, the patron saint of the nullification proponents, came to recognize a serious risk of any insurrection (see “The Founders’ Battle over the Nullification Heresy”) and pointed us to a better alternative:

In this state [Virginia], we fear that [violations of the Constitution] may produce insurrection. Nothing could be so fatal. Anything like force [used against the violators] would check the progress of the public opinion and rally them round the government. This is not the kind of opposition the American people will permit. But keep away all show of force and they will bear down the evil propensities of the government by the constitutional means of election and petition. (Emphasis ours.) — Thomas Jefferson to Edmund Pendleton, Feb. 14, 1799. ME 10:105

It is truly odd how the proponents of supposedly easy, “silver-bullet” fixes like nullification tend to discount or overlook the mighty power of the ballot box. For example, those who call for a risky, Article V constitutional convention to create “term limits” for Congressmen, completely overlook the best term limits that anyone could devise: the requirement of Congresspersons to face periodic and fairly frequent elections.

Nor do our “silver bullet” proponents show much sagacity when they intone repeatedly their alarms of an “out of control” federal government. The fact that the same Congress which passes all these unconstitutional bills is for the most part repeatedly re-elected shows that the American people approve, to the extent they are aware, of the job their elected representatives are doing.

Even more overlooked, perhaps, are the great powers that Congress holds over the other two branches of the federal government. In regard to the Executive branch, for example, Congress holds the “power of the purse” which James Madison so celebrated. There is virtually no power that either the President, or the massive bureaucracy over which he or she presides, can exercise which Congress does not first approve and fund.

And most ignored of all, probably, is the power that Congress holds over the Judicial branch of the federal government. We could not begin to improve on the clear, full, and accurate description that Don Fotheringham has provided of this important power. We will only add that it is the constitutional, legal, safe, but fully effective means that our Founding Fathers built into our federal system.

What is missing then, from the legal, constitutional, relatively risk-free approach? Nothing — except for the necessary understanding and fortitude on the people’s part. As Thomas Jefferson warned, whichever approach we choose to uphold our constitutional liberty, we will be unsuccessful in our efforts unless we provide the needed educational undergirding.

To provide that educational undergirding is the basic purpose of the Freedom First Society. We invite all freedom-loving Americans to partake in the wisely targeted, nationwide sort of educational effort that is an absolutely necessary condition for the upholding and preserving of our liberty.

Notes

  1. Nor is nullification a mere legalizing, at the state level, of something the federal government makes illegal. That would not involve even the state’s making a pronouncement, about the constitutionality of the federal law. It would simply be its not duplicating the federal government’s outlawing (of whatever). Thus, for example, several states have legalized one or more forms of marijuana use, in contrast with federal law. It happens that in this matter the federal government has decided not to allocate its resources to the costly undertaking of restricting the use of marijuana. This makes it de facto legal. But this is not a case of “nullification” of a federal law; it is simply a case of the federal government biting off more than it can chew in outlawing something.
  1. Admittedly, there are cases where the federal government depends explicitly on state-government cooperation in order to carry out a program. This is the case with several parts of Obamacare. But that is the exception, not the rule: As just mentioned, it is a well established principle that the federal government cannot demand such cooperation. The states are quite free not to give their help. So, recent calls to “nullify Obamacare” do not involve “nullification” in its full ramifications: the Tenth Amendment Center describes them more accurately as “nullification in effect.”

 

 

The Founders’ Battle over the Nullification Heresy

Although nullification itself was not discussed much at the time of the Constitution’s drafting and ratification, the consensus at that time was that authoritative decisions about the constitutionality of federal laws would be the province of the federal courts, not the states.

This was the view of an overwhelming weight of authorities and experts. Both the Constitutional Convention, the state ratifying conventions, and over half a dozen Federalist Papers show clearly that the founders of our Constitution attributed this authority only to the federal courts. And that implied that nullification was illegal.

But what should the states do, if Congress steps way out of its constitutional bounds and the Judicial branch colludes (or could be expected to do so) in the usurpation? That issue raised its head a mere eleven years after the Constitution was written — with the passing of the unconstitutional and quite tyrannical “Alien and Sedition Acts”. Both James Madison and Thomas Jefferson were extremely disturbed by this legislation.

In his Virginia Resolution (passed Dec. 24, 1798), a response to those acts, Madison floated the idea of a state’s “interposing” against an unconstitutional federal law. This Resolution did not indicate, though, what concrete acts “interposition” might involve. Later, in the Report of 1800, Madison gave some specific examples: communicating with other states about the unconstitutional federal law, attempting to enlist the support of other states, petitioning Congress to repeal the law, introducing Constitutional amendments in Congress, or calling a constitutional convention. None of these is very surprising — much less, of questionable legality.

Most likely the first discussion of the “nullification” concept — though he did not use the term — was actually in Federalist Papers 15 & 16, written by Alexander Hamilton.

In Paper 16, Hamilton distinguished carefully “between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or TO ACT EVASIVELY, and the measure is defeated.” Hamilton continued:

But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular [i.e., state] governments could not interrupt their progress without an open and violent exertion of an unconstitutional power…. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority…. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors…. (Interpolations and emphasis ours.)

Unfortunately, in the face of the Alien & Sedition Acts, for a very brief time in 1798-99 Thomas Jefferson succumbed to the temptation to lay that very course. The “Kentucky Resolutions” of 1798 were likewise a state’s response to those acts. Jefferson, who was Vice-President, was their original author, though this was not widely known at the time. (Jefferson and Madison were close friends and fellow members of the Democratic-Republican Party, and carried on extensive correspondence during this period. Each wrote his Resolutions anonymously.) It was in the Kentucky Resolutions that Jefferson coined the term “nullification”.

The Kentucky Legislature itself was more reserved in their statements than was Jefferson: before they passed his Resolutions they removed the term “nullification” (although they restored it in their 1799 version). Also, their 1798 version ended by expressing the hope “… that the Co-states recurring to their natural right in cases not made federal [by the Constitution], will concur in declaring these [Alien and Sedition] acts void and of no force, and will each unite with this Commonwealth in requesting their repeal at the next session of Congress.”

Jefferson’s original drafts were more straightforward, about what “nullification” truly involved: in those drafts the same passage reads:

… and that the co-states, recurring to their natural right in cases not made federal, will concur in declaring these acts void and of no force, & will each take measures of it’s own for providing that neither these acts, nor any others of the general government, not plainly & intentionally authorised by the constitution, shall be exercised within their respective territories. (Emphasis added.)

Here Jefferson went boldly where Madison feared to tread: what Jefferson meant by the term, and what he hoped for from the other states, involved not only the state’s pronouncement of the “null and void” status of an unconstitutional federal law, but also the state’s taking whatever measures are necessary to make sure the law is not enforced within its boundaries.

This is the whole point of nullification. But practically, in such cases as Jefferson had in mind, those “measures” would entail the use of force – or at least, the credible threat of it.

Jefferson was fully aware that it might involve actual violence. On Nov. 17, 1798, after he had finished his draft of the Kentucky resolves, he wrote in a letter to Madison, “I inclose you a copy of the draught of the Kentuckey resolves. I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent.” (Emphasis added.)

By early 1799, however, Jefferson had decided that any actual use of violence would be counterproductive — for some of the same reasons Hamilton had mentioned years earlier. In a letter to Madison on Jan. 30, Jefferson wrote that “Firmness on our part, but a passive firmness, is the true course.  Anything rash or threatening might check the favorable dispositions of [several States that had petitioned against the Alien & Sedition Acts], & rally them again around the measures which are ruining us.” (Emphasis added.)

Instead, in late August 1799 Jefferson suggested a different radical remedy — secession. In letters to Madison and to Wilson C. Nicholas, he outlined his new plan for strengthening public support for the principles expressed in the resolutions.

Jefferson suggested that a new set of resolves be passed by the legislatures of Kentucky and Virginia, and sent to the various states, which, after encouraging their support for the resolutions, would add that:

[Kentucky and Virginia were] fully confident that the good sense of the American people and their attachment to those very rights which we are now vindicating will, before it shall be too late, rally with us round the true principles of our federal compact; but determined, were we to be disappointed in this, to sever ourselves from that union we so much value, rather than give up the rights of self government which we have reserved, & in which alone we see liberty, safety & happiness. (Emphasis ours.)

This idea horrified Madison, it seems. He paid a visit to Jefferson the very next week, and convinced him to back down from his plan.

Most serious Jefferson historians, as well as most other American leaders at the time, have been dismayed by his actions during this period. As Wikipedia points out,

In writing the Kentucky Resolutions, Jefferson warned that, “unless arrested at the threshold,” the Alien and Sedition Acts would “necessarily drive these states into revolution and blood.” Historian Ron Chernow says of this “he wasn’t calling for peaceful protests or civil disobedience: he was calling for outright rebellion, if needed, against the federal government of which he was vice president.” Jefferson “thus set forth a radical doctrine of states’ rights that effectively undermined the constitution.” [34] … George Washington was so appalled by [the resolutions] that he told Patrick Henry that if “systematically and pertinaciously pursued,” they would “dissolve the union or produce coercion.” [34]  (Emphases ours; interpolation Chernow’s.)

 

 

“Living” Is Fatal For Constitutions

 A long exposed constitutional heresy undergirds the June 26, 2015 Supreme Court decision supporting same-sex marriage.

[T]he candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
 — First Inaugural Address by Abraham Lincoln, March 4, 1861, in A. LINCOLN, SPEECHES AND LETTERS 171–72 (M. Roe ed. 1894).

As many Americans know, the U.S. Constitution’s Tenth Amendment says, in essence, that the federal government has no power or authority that is not granted to it, explicitly, in this Constitution; and it cannot prohibit to the States any power or authority not prohibited to them, explicitly, in this Constitution. Thus the amendment makes very clear the force and purpose of our Constitution.

Now, try to imagine a scenario in which “We The People”, in drafting this Amendment (via our elected representatives), decide to add this proviso: “However, the federal government has, in addition, the authority to interpret the Constitution without regard to the text’s meaning; thus, it may find therein any new powers or authorities it wishes it to grant to itself, and any new prohibitions of power or authority it wishes it to make to the States.

Would that scenario make any sense? Would not such a proviso nullify the previous statement in the Tenth Amendment – or rather, even effect its opposite – and thereby nullify the Constitution? Of course it would.

However, a majority of current Supreme Court justices have, in effect, assumed this proviso; and its presumption formed the basis of the Supreme Court decision overturning state laws against same-sex marriage. Moreover, its presumption was behind many other Constitution-twisting Supreme Court decisions in the past, such as the abortion-legalizing decision in 1973.

A “Living” Constitution

In what form, and what terms, does this presumption appear? Incredibly, it has been elevated to the status of a legal doctrine – one actually promoted in some judicial circles, though hardly ever mentioned in the news media. As such, it has a name: it is the idea that we have a “living” Constitution – one that evolves with the changing times, without having to be amended by a stipulated, time-consuming procedure.

It goes without saying, that none of the proponents of this presumption would want their writings treated with the willful twisting of intent they advise us to apply to the Constitution. For then, we could read into their writings the very opposite of their intended sense, on any day(s) that we deemed it appropriate.

The idea did not always go under the name “living Constitution,” however. As former Supreme Court Chief Justice William Rehnquist points out, it reared its head first in the notorious Dred Scott decision (1857), which overturned the Missouri Compromise (about slavery). The basis of that Supreme Court decision was a flagrant distortion of the Fifth Amendment’s “due process” clause:

[No person shall] be deprived of life, liberty, or property without due process of law….

Please note, “process of law” means just that: a legal procedure – or more specifically, a trial. “Due process” means simply, a trial conducted according to the applicable procedural rules. Thus, the “due process” clause enjoins the following of the appropriate procedural law; it says nothing about the substantive law being applied via the procedure.

This clear, original sense of the legal concept “due process of law” is sometimes called “procedural due process” (an obvious circumlocution). This is to distinguish it from the nebulous meaning into which Dred Scott twisted the phrase. The latter is often called “substantive due process,” a contradiction in terms: it means, basically, what substantive law (as opposed to, procedural law) would qualify as fair and right, in the situation, according to the judge’s inmost feelings and intuitions. In short: it is a rationalization for the judge’s own twisting of the law.

It is good to read the Court’s original statement, from that decision, as well as the decision’s pungent rebuttal from one of the dissenting justices. For neither its invocation nor its rebuttal has probably ever been, or could be, expressed any more accurately. In his dissenting opinion in the recent Supreme Court decision about same-sex marriage, Chief Justice John G. Roberts quoted both statements:

[T]he Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law.” In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control” the Constitution’s meaning, “we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”  [pp. 50-51; the interpolation and first ellipsis are by Chief Justice Roberts]

The “due process” and other clauses in the Fifth Amendment restrict the Federal government. After the Civil War, the Fourteenth Amendment invoked the “due process” language again – against the states. But fortunately, the “substantive due process” idea did no further damage –until 1897.

In that year, the Fourteenth Amendment’s “due process” clause became the basis for more Constitution-twisting in Allgeyer v. Louisiana (165 U. S. 578). Likewise based on “substantive due process”, but gaining more notoriety, was 1905’s Lochner v. New York decision (198 U. S. 45). That case started a rash of similar decisions, in a now discredited judicial period known as “the Lochner era”. By making use of the “substantive due process” idea, during this time “the Court struck down nearly 200 laws as violations of individual liberty, often over strong dissents contending that ‘[t]he criterion of constitutionality is not whether we believe the law to be for the public good.’” (Roberts, ibid., pg. 52 in the decision document.)

Interestingly, the first use of the word “living” to describe the Constitution as a malleable, twistable discourse was apparently in a 1908 book by Woodrow Wilson, who urged the approach. In true Progressive style, he preached an adaptable, evolutionary Constitution through creative text-twisting.

The end of the Lochner era is usually estimated at about 1937. After that year a strong reaction set in as the judicial consensus arose that in its use of “substantive due process”, the Court had far overreached its authority. But numerous decisions since then (e.g., 1973’s Roe v. Wade) testify to the powerful temptation this idea holds still for justices who wish to alter public policy. In response to its most recent deployment, Chief Justice Roberts opined that the majority’s “aggressive application of substantive due process breaks sharply with decades of precedent and returns the Court to the unprincipled approach of Lochner.” (pg. 54 in the decision document.)

So What Can We Do?

So, how do we control a federal judiciary that believes it has a divine right – and maybe an obligation – to twist the Constitution? It should be obvious that the only sort of Constitutional amendment that could address the problem would be one that repeals the Fourteenth Amendment’s “due process” clause. But how likely does the passage of such an amendment seem? And any call for a different amendment as an alleged solution would clearly be specious.

Is there a more-sensible approach? Indeed there is, one that requires only a simple majority of Congress. In an incisive article, Don Fotheringham has introduced us to the solution that our Founding Fathers built into the Constitution. Every American should read this enlightening article.

Furthermore, every American needs to recognize that we cannot rely on the mass news media to inform the rest of the citizenry about the problem, much less about the solution. As a forthcoming booklet from FFS, Media-Controlled Delusion, makes clear, the media are far too interested in promoting their own, usually liberal agendas – such as, the hidden agenda regarding same-sex marriage (see that booklet’s Chap. 3).

Instead, concerned Americans must join in an organized effort to educate their fellow citizens – an effort that bypasses the major media – such as our own “Campaign for Decency – Curb The Courts”. This is the only kind of approach, today, that has a chance to succeed. But there is no reason at all why it cannot. Contact the FFS to find out more.

 

Cuban-Americans vs. Obama re Cuba

If Obama’s intended reversal of our longstanding policy towards Cuba were an improvement, we would naturally expect Cuban-American politicians to be among the first to welcome it. By the same token, we would naturally expect the President to have listened closely to that group, in weighing potential changes to our Cuba policy: “They are the best interpreters of the opinion of the almost three million Cubans and descendants of Cubans living in the United States,” as Carlos Alberto Montaner, a Cuban-born author, journalist and syndicated columnist, points out.

Instead, we find a schism between these leaders and Obama. A few months prior to Obama’s December 2014 call for “normalization” of our relations with Cuba — which would naturally include removal of our trade embargo and sanctions against that country — one of these leaders, U.S. Representative Mario Díaz-Balart (R-Florida), noted that “there is not one Cuban-American elected official, state or local level or federal level, who does not support the sanctions, and does not support the embargo.” And six months after Obama’s announcement of his intended change, these politicians are still all opposed to normalization of U.S.-Cuban relations. Indeed, as Obama knows quite well, these leaders will likely be his policy’s staunchest opponents in Congress.

The incongruity of such a schism raises serious questions about Obama’s shift in U.S. policy towards Cuba: What do the Cuban-American leaders disagree with, in Obama’s radical policy change? Why do they find his argument for it unpersuasive? And — since, clearly, he is not catering to Cuban-Americans with this radical shift in policy — to what constituency (if any) is he catering? Let’s take these questions in turn.

  1. What do the Cuban-American leaders dislike about Obama’s policy change?

The main argument that Cuban-American leaders use to counter Obama’s proposal is that his plans to allow trade with and investment in Cuba will only enhance, not reduce, the Castro regime’s power. Far from easing or ending the oppression of the Cuban masses (as Obama suggests), the actual effect of his changes will be to make the Communist regime’s power more secure and unaccountable.

The basic reason for this is that, under Obama’s new policy, no change of ideology or practice is required of the Communist — and thus, socialist — government of Cuba. And, in any socialist country, the government owns the means of production, i.e., the “businesses” producing everything people buy. Thus, doing business with Cuba is, really, doing business with the Communist regime. And that will not free the Cuban people; on the contrary, it will help their oppressors — as Rep. Díaz-Balart points out (in an interview by a New York Times reporter):

There are around 200 plus countries in the world, I believe but two or three have relations with the Castro regime, I believe most of them do business with the Castro regime, Canada, being one of them, Mexico … they do business there, tourism and everything else. Has that, has doing business with the vast majority of the countries of the world, has that freed the Cuban people? Has that done something to free the Cuban people? … No, what it has done is just the opposite. It has allowed the revenue for the regime in order to continue to oppress its people.

It is true that in recent years the Cuban government has, after the fashion of the Chinese government, seemed to “loosen” its grip on the economy a bit, allowing a few ostensibly private businesses to be created. But by the most generous estimates, the Cuban government owns outright, still, more than 80% of the economy.

But the crucial point economically is not who owns the businesses in name, but rather whether the government controls these assets. That is exactly why fascism — in which non-governmental parties “own” the businesses, nominally, but all the decisions are made by government — has the same economic features as socialism.

It is obvious that Cuba’s “loosening” of its grip on the economy amounts to nothing more than a tactical, meaningless substitution of fascism for a fragment of its socialist economy. Taking a position contrary to his employer’s, Jorge Benitez, director of NATOSource and a senior fellow at the Atlantic Council, has argued strongly against lifting the embargo, partly for this reason:

The most overlooked fact in this debate is that every euro, ruble, peso or Canadian dollar invested in Cuba goes directly to Castro and his cronies. Foreign businesses are not allowed to pay wages to their Cuban employees. Instead, they are required to turn the money over to the state. The Castro government keeps most of the foreign money and hands out only pennies to the Cuban people. Lifting U.S. sanctions would only add our dollars to this corrupt trade.

Rep. Díaz-Balart also argues adamantly against the use of American dollars to increase the fascist segment of Cuba’s economy and he further insists that lifting sanctions unilaterally is against the wishes of the majority of the internal Cuban opposition, who want a path to be free.

He reminds us that, given their de facto control of the entire economy — whether in socialist or fascist style — the Cuban regime can easily ensure that only companies that endorse it will be able to carry on operations there:

[Y]ou can’t take away the fact that the regime has been there for 55 years, controls the entire financial structure in Cuba, decides who can open a private restaurant in Cuba or not, and if … you are someone unfavorable of the regime it would be very difficult to do that, that is just the reality of life there.

So here is the question, do we then, unilaterally lift sanctions not asking for something in return. And if we are going to ask for something in return, what should that be? I think there are some basic freedoms that have to be demanded in return for lifting the sanctions: freedom of press, otherwise you have no freedom, whether we like it or not …; independent labor unions …; political parties, freeing the political prisoners. Or do we go there and invest and go there with our flipflops to the beaches while Cubans are being held in prisons just for their beliefs?

  1. Why do Cuban-American leaders find Obama’s argument for his change unpersuasive?

The main argument of Obama, and of other partisans of his changes, goes basically like this: “We have been following the old policy for half a century now, and what has it achieved? The Castro regime is still in power, still oppressing the Cuban people. It’s time to try something new.”

On the surface, this argument seems powerful. But lying beneath the surface, it contains a couple of unstated assumptions, which — as relevant premises of the argument — need scrutiny.

First, the argument assumes that the only way we can know whether a policy will work is to try it out for a reasonable length of time and see what it produces. But what if we made this claim in regard to economic policies? It would amount to claiming that we can’t know what a particular policy will produce, from an economic standpoint, until we put it in place for a few decades and check the result. Most economists, I think, would be quite surprised to hear this. So, the argument’s first hidden premise claims too much.

The second is no less doubtful: It holds that the goal of the policy was — or at least, should have been — the removal of the tyrannical, Communist regime from power. Now, the founders of our country would never have conceded the idea that any part of our foreign policy (i.e., outside of our own self-defense) should have as its ultimate goal to remove a foreign tyranny from power. Before he became our sixth President (in 1825), John Quincy Adams was already distinguished as a diplomat and a brilliant crafter of foreign policy: In 1823, while serving as Secretary of State, he authored what became known as the Monroe Doctrine, one of the longest-standing tenets of U.S. foreign policy. On July 4, 1821, in a historic address on U.S. foreign policy, Adams made this clear-sighted statement:

America … has, in the lapse of nearly half a century, without a single exception, respected the independence of other nations, while asserting and maintaining her own. She has abstained from interference in the concerns of others, even when the conflict has been for principles to which she clings…. Wherever the standard of freedom and independence has been or shall be unfurled, there will her heart, her benedictions and her prayers be. But she goes not abroad in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own…. She well knows that by once enlisting under other banners than her own, were they even the banners of foreign independence, she would involve herself beyond the power of extrication in all the wars of interest and intrigue, of individual avarice, envy and ambition, which assume the colors and usurp the standards of freedom. The fundamental maxims of her policy would insensibly change from liberty to force. The frontlet upon her brows would no longer beam with the ineffable splendor of freedom and independence; but in its stead would soon be substituted an imperial diadem, flashing in false and tarnished lustre the murky radiance of dominion and power. She might become the dictatress of the world: she would be no longer the ruler of her own spirit.

Nor for Cuban-American leaders, such as Rep. Mario Díaz-Balart, was regime-change ever the foreign-policy goal. He affirms repeatedly that his goal for, and the purpose of, the longtime policy is to refrain from helping the Communist regime; and, in this and other, limited, targeted ways to “help the Cuban people free themselves from this regime.” And certainly, the embargo and sanctions have presumably a goal of keeping Americans from unwittingly undermining their own security interests. All of this falls well short of the intent to undertake regime-change ourselves.

Nor was there a hint in Rep. Díaz-Balart’s discussion of the old policy that he considered this policy a failure: it has obviously blocked (some) help to the tyrannical regime, and also helped the Cuban people to be in a better position to free themselves from the rule of the Castros. And that is all that it was intended to do — at least, from Rep. Díaz-Balart’s perspective.

So the two assumptions implicit in the above argument would, to Cuban-American leaders, be doubtful at best. The argument dependent on them would, therefore, naturally seem unsound to these leaders.

But another argument appears sometimes. U.S. Sen. Jeff Flake (R-Arizona) has over the last decade been perhaps the strongest proponent in Congress for normalization of our Cuban relations. He offers the argument that “engagement” of Americans with the Cuban people will increase the latter group’s taste for liberty; and that this, in itself, will put more pressure on the Castro regime. Sen. Flake offered this argument as early as 2003:

A genuine get-tough policy with Cuba would export something Americans know a little about: freedom. Let’s get rid of travel license applications altogether…. All Americans should be free to go to Cuba without government interference…. Cuba would be flooded with American visitors — and American ideas. For Fidel Castro, that would be the toughest policy of all.

Recently Flake used it again, asserting that “When people get more freedom, they want even more of it.” Now, the unstated assumption here is the outlandish proposition that people who are isolated from the rest of the world, with no freedom of speech and under a repressive dictatorship, will have rather less of an appreciation for liberty. In fact, it is precisely (and fairly obviously) those who have the least liberty, who will appreciate it and “want more of it” the most. We may safely assume that the Cubans living under this oppressive, Communist dictatorship have — already, and without our intervention — at least as much appreciation for the value of liberty as do Americans today in general. Sen. Flake’s proposition is an outrageous insult to the good sense, and even to the humanity, of the Cubans living under this oppression.

Christopher Sabatini — who is the senior director of policy at the Americas Society and Council of the Americas and founder and editor in chief of their hemispheric policy magazine Americas Quarterly — and also chairs the AS/COA’s “Cuba Working Group” — stated the argument, in October 2014, with even more audacity:

Human rights abuses continue in Cuba and U.S.A.I.D. contractor Alan Gross remains in prison. But it is precisely for that reason that President Obama needs to continue to lift the veil of isolation the U.S. has placed over Cuba — doing so will promote a greater flow of information and independent activity that has led to political opening across the world. It’s no coincidence that there’s never been democratic change in a country under as tight as an embargo as the one the U.S. has had on Cuba for 53 years; and it’s no coincidence that it has failed. [Emphasis is ours.]

Now, as indicated above, Cuba has been trading freely with almost the whole rest of the world for quite a while. So Sabatini’s suggestion that our own embargo may have placed such a “veil of isolation” upon Cuba as actually to prevent democratic change there, falls to the ground. But notice the extreme boldness of the statement which we have emphasized (in bold, appropriately) that the continuing repression is — not a sign that we have a brutal, tyrannical regime (90 miles from our shore) that is the enemy of liberty as conceived of in America, and therefore we should avoid helping this anti-democratic, despotic regime — no, rather it’s a sign that we need to lift the embargo, the travel restrictions, the sanctions — in short, normalize our relations with the admittedly brutal dictators. How can you get any bolder than that? But Cuban-American leaders repudiate this astonishing line of reasoning.

  1. To what constituency, then, IS Obama catering, with this radical shift in our Cuba policy?

Very few Americans have even heard of, much less are familiar with, the groups (and their publication) that Mr. Sabatini helps lead. But those groups are a prime example of the very small but very powerful foreign-policy lobby that has apparently been driving Obama’s Cuban-policy shift. Here are links to an open letter they wrote to President Obama in May 2014, detailing changes they want to our Cuba policy, and a follow-up open letter to him they published in January.

This lobby includes not only the Americas Society and the Council of The Americas, but also the Inter-American Dialogue (IAD) and the Forum of the Americas. These groups all have at least two things in common: they have been pushing for decades, the changes that Obama is now promoting; and, they were founded by David Rockefeller.

In fact, David Rockefeller has been by far the biggest driving force in Western Hemisphere foreign policy over the last several decades. For example, he has been almost the whole driving force behind the Summits of the Americas, which are intermittent gatherings of heads or representatives of many nations of the Western Hemisphere. President Obama attended the seventh, most recent such Summit, held in Panama City, Panama on April 10-11, 2015; and there he met with Cuba’s President Raul Castro.

Dr. Rockefeller’s deep foreign-policy interests and experience range far wider than the Western Hemisphere. It would take a while to detail a reasonable sample of his prominent involvements in foreign policy, starting as far back as World War II. (In June 2015, he had the good fortune to celebrate his 100th birthday). Significantly, he was for 15 years the Chairman of the Council on Foreign Relations (CFR), and is currently an Honorary Chairman of that group. One good place to go for helpful background on this little-known, relatively small yet super-powerful group — which has virtually controlled U.S. foreign policy since before World War II — is the recent book by Don Fotheringham, The President-Makers. Members of that hugely influential group also include the President and CEO of the Americas Society and Council of the Americas, Susan Segal; and Obama’s Assistant Secretary for Western Hemisphere Affairs, Roberta S. Jacobson. (A recent interview of Ms. Jacobson by Ms. Segal is posted here.)

Now, let us consider: Would anyone with the foreign-policy experience — probably unsurpassed — and expertise of David Rockefeller think, seriously, that normalization of our relations with Cuba would be in the interests of American-style liberty in the Western Hemisphere? Would he not see quite clearly that it can only help to prop up the reigning Communist regime?

Well, note that the CFR’s “Nelson and David Rockefeller Senior Fellow for Latin America Studies” and Director for Latin America Studies, Julia E. Sweig, has been outed as a long-standing friend and supporter of some of the most extreme elements in Cuba’s Communist regime — including two indicted (and then deported) terrorists. Reportedly, “Sweig’s promotional services for the Castro regime reached a level where the U.S. Defense Intelligence Agency top Cuba spycatcher, Chris Simmons (now retired), named her a Cuban ‘Agent of Influence.’” So, based on his CFR chairmanship alone, we may reasonably doubt that American-style liberty could possibly be Rockefeller’s paramount goal.

In fact, he has made clear that his real goal is something else entirely: According to his own admission, published in his own autobiography, his aim has been the convergence of all nations into a one-world economic and political order:

For more than a century ideological extremists at either end of the political spectrum have seized upon well-publicized incidents such as my encounter with Castro to attack the Rockefeller family for the inordinate influence they claim we wield over American political and economic institutions. Some even believe we are part of a secret cabal working against the best interests of the United States, characterizing my family and me as internationalists and of conspiring with others around the world to build a more integrated global political and economic structure — one world, if you will. If that’s the charge, I stand guilty, and I am proud of it. [From his 2002 autobiography, Memoirs, p. 405.]

That’s a startling admission — of which most Americans will not have been informed by their news media. But what could bring a supposed capitalist like David Rockefeller to “conspire” with Communists and socialists to build a one-world political and economic order? A long-time Brazilian political observer and writer, Olavo de Carvalho, explains:

I believe that this absurd surrender of the winners [of the Cold War] was also stimulated by powerful globalist circles, whose interest in establishing worldwide bureaucratic controls converges with the objectives of the communists. The number of billionaire companies which came to openly contribute to leftist parties is enormous. I call “meta-capitalists” the individuals and groups which grew so wealthy with the market economy that they can’t stand anymore being at the mercy of the free market and seek, instead, to control everything, supporting bureaucracy instead of capitalism. Meta-capitalists are natural allies of the communists…. The “ideological” contrast serves only as propaganda. What we have is a gigantic symbiosis of all globalist and statist forces around the world.

 

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