The Federal Courts Have Become Political, as Judge Kavanaugh’s Confirmation Hearing Made Clear

KAVANAUGH - at Senate Confrrmation Hearing (Sept. 2018)

by Diane Rufino, Sept. 22, 2018

The United States is a constitutional republic.  It is not a democracy, as most people believe. A “republic” is a form of government in which supreme power is held by the people and their elected representatives, and which has an elected president rather than a monarch. It is a “constitutional” republic because it is the constitution which outlines what powers the government has and does not have. It is “constitutional” for another important reason; the constitution protects important individual rights that belong to ALL persons, whether those persons belong to a minority group or whether they happen to be of the majority. The implications of this are critical for our country. The majority may be successful in electing the representatives of their choice and may try to push the agenda that serves them best, but they can never target minority groups to burden their rights, liberties, privileges, or property.

As you can see, the Constitution is the cornerstone of our society; it forms the very foundation of our government system and the foundation of our Rule of Law. It defines the division of government power between the federal government and the states, and then the state and local governments have their authority.

The Constitution is the People’s document. How can that be when I just explained that how it defines the powers of government?  It is the People’s document because above all else, it sets limits on the power and the reach of government on the rights and in the lives of Americans. It establishes boundaries on government. Individual Liberty is greatest when government is most properly restrained.

After all, Individual Liberty is the great ideal on which our country was founded.

The problem with this ideal though, is in the diminishing role the Constitution holds and the transitory nature that too many judges attribute to it (“a living, breathing document”). The Constitution can’t mean what it what it was meant to mean…  That’s too archaic. It is a product of a different time, with different values.  The Constitution must mean what judges and justices infer it means, according to the changing times and values. This is the argument of liberal and progressive judges.

To compound this problem further is the fact that the federal government now holds a monopoly over the meaning and intent of the Constitution.  It can legislate as it wishes; it can enforce as it wishes, and god forbid either branch is challenged, well then the federal courts will usually support them. The federal judiciary is the branch which has given itself the supreme power to interpret the Constitution and to require all states and localities to abide by its opinions, even when that opinion is delivered by a single judge, by 2 members of a 3-member panel of judges, or by a 5-4 split on the Supreme Court.  (The point I’m making is that often an “opinion” is the result of a single judge).  As the name implies, the federal judiciary is a branch of the federal government. It is not an impartial tribunal for the various parties to a suit, including the States, the Church, individuals, minority groups, etc. It is a tribunal whose members are political appointees nominated by US presidents and confirmed by the political members of the US Senate. They are creatures of the federal government, beholden first and foremost to the system that put them on the seat of the highest courts of the land.

Does anyone really believe that, in their opinions, the federal courts are not going to tend to side with the federal government?

The truth is that the federal government is virtually free to assume any and all powers it wants or thinks it needs; conversely, it is also free to ignore powers it wants to ignore. And we’ve certainly seen this trend. Over the years, and it began almost immediately (in 1803), there has been a constant and steady transfer of government power from the States and from the People to the federal government. The government, once of limited powers, has now swelled to a government of consolidated and unlimited power.

To make matters even worse, the federal judiciary has become a third political branch, making the monopoly completely political in nature. Politics, as we know, invites aggression and division. It is not a unifying force but one of division.

The federal courts have become political, rather than apolitical, which is what they were intended to be. Interpretation of the Constitution should be, and MUST ALWAYS BE, free from politics. Interpretation is really simple; its black and white, and rarely involves shades of gray.  Those of us who have been involved in the reading of a will or navigating the fine print of a credit card, or even re-negotiating the terms of a contract, understand what interpretation is all about.  The terms speak for themselves. The provisions, including how they are written, with commas, semi-commas, and sub-paragraphs, speak to the intent.

In short, contract law governs the role of a judge when it comes to the interpretation of the Constitution; the document is interpreted according to its plain words, the meaning of those words at the time they were written and agreed upon, and any contemporaneous documents or writings that help explain the Constitution’s meaning and intent.

The contemporaneous documents that might be (and should be) included in a judge’s exercise of interpretation include The Federalist Papers (because they were written to explain the Constitution and because they were written, in large part, by James Madison, the primary author of the Constitution and Alexander Hamilton, who also attended the Convention in 1787, they were assurances given to the States on which they relied in their ratifying conventions) and any debates in the Ratifying Conventions (because those “understandings” became part of the “meeting of the minds” on which the States agreed to adopt the Constitution). There is NO role of a federal judge to interpret the Constitution applying modern values or norms or to interpret it through the lens of a political agenda.

And yet they do. In fact, there is a whole population of judges who are referred to as “progressive” or “liberal” judges and who hold the opinion that the US Constitution is not firm in meaning but rather is a “living, breathing document” to be molded and transformed by smart lawyers (considering themselves, of course, to be far smarter than we ordinary citizens) according to the dictates of politics and evolving social norms and values.  It is those types of lawyers, unfortunately, who have the power and authority to define those social norms and values. As we all know, social norms and values are political.

The Constitution is a social compact, which is important to understand. A social compact is an agreement among the members of a society on how they will organize and govern themselves. They organize and form a common government in order to establish order, to share common services, to cooperate for mutual benefit, and for protection. For example, a typical social compact requires some sacrificing of individual freedom for state protection. In other words, in an ordered society, individuals can’t go around taking the law into their own hands. The people of our founding generation (the people of the original states), acting through duly-organized state conventions, ratified the Constitution. In doing so, the States joined themselves in a federated union, agreeing to transfer some of their sovereign government powers to the common (or federal) government and agreeing to abide by its governance. So, it is the States which are the parties to the Constitution. The Constitution provides a mechanism – the only legal mechanism – by which those who are parties to its agreement (ie, the States) can amend it in order to bring it up to date with current norms and values, and that is the amendment process, which is outlined in Article V.  The options (two of them) are the only way the Constitution can legally be “updated” to reflect modern times. And that makes sense because again, the Constitution is a social compact and it is the People, in their state conventions, who make and amend that compact. It is THEY who determine how THEY want their society to be organized and governed and by which values and principles.  It is not the government to make that determination. Government has no such power; rather it is tasked to strictly interpret the Constitution. It is tasked to preserve the document that the People have drafted and adopted for their governance. Government has no power to amend it by back channels such as the federal bench or by policy or executive order because the government is not a party to the compact but rather, its creation.

Things are becoming worse and worse for our federal courts; they are increasingly becoming more political and becoming more aggressive in their roles. The reason they are becoming politicized is because liberals and progressives (Democrats) are increasingly turning to the federal courts to seek the progress that they cannot achieve through the ordinary democratic process (elections and lawmaking).

That is why what we saw a few weeks ago on TV with the Senate Judiciary Committee questioning Judge Brett Kavanaugh troubled us so thoroughly.  The Confirmation Hearing was an embarrassing, a humiliating, political circus. Democratic Senators not only organized and staged a despicable protest of Kavanaugh – carried out by numerous androgynous-looking individuals who screamed and essentially carried on like petulant children – but they engaged in outright character assassination. Democrats were proud of their conduct.  Senator Lindsey Graham articulated their conduct best when he told them (paraphrasing): “You were never going to vote for him. Why don’t you just do what you were going to instead of making a mockery of this hearing and doing everything you can to destroy the character of this fine man, and in front of his wife and children no less. Just vote NO, like you intended to.”

The Democrats want nothing more than to get promises from Kavanaugh that he will use his position as a Supreme Court justice to further their agenda to get rid of President Trump. They seek nothing more than to co-opt a single seat on the bench of the highest court in the land to undo the 2016 election – the legal and constitutional election by the people. The Democrats, in every public hearing, in every instance before a microphone, in every interview, with every national crisis, and with every act of presidential power taken by President Trump, use the occasion to condemn, criticize, mock, and humiliate him… to misconstrue his actions, to accuse him of acting erratically, and to call for his impeachment.

They are a bunch of low-lives who hold no moral ground to accuse anyone of being imperfect. How dare they impugn the character of someone like Brett Kavanaugh when they are, collectively, nothing more than a bunch of tax cheats, law-breakers, criminal solicitors, race baiters, hustlers, sexual predators, and constitutional illiterates. If Democrats are going to turn every confirmation of a Republican candidate into a very public “high-tech lynching” (a term used by Clarence Thomas in his own confirmation hearing), then I agree with those who argue that confirmation hearings should be kept closed and out of the eyes and ears of the American people. No one needs to be reminded of how low and vile and despicable and unconscionable and dishonest and uncivil our Democratic lawmakers have become.

I found Kavanaugh’s Senate Confirmation hearings to be absolutely sickening. Now, more than ever, I believe Democrats to be the enemy of our country and nothing more than parasites and a disease (a plague) on our good and honorable nation. They do NOT represent the values and conduct of the overwhelming majority of Americans. Most Americans conduct themselves mindful that they reflect upon the character and morality and decency of our great land.

While we are on this subject, let’s  not forget WHY Democrats conduct themselves as they do. Personally, I believe it’s because they are acting out of pure desperation and futility. They are a party of a derailed and un-American message; they are losing resonance with the American citizen (yet picking up new followers — illegals, foreigners, social misfits, transgenders, psychotics, financially-dependent sloths, ignoranuses…..) We are witnessing the desperate acts of the leaders of a desperate political party.

Let’s not forget WHY they follow the same sordid, sickening template every single time, which is to spread lies about Republican candidates and nominees and to make up allegations of sexual harassment …. Because it works. The politics of PERSONAL DESTRUCTION is something the Democrats have become good at. The politics of spreading lies and instilling fear (including a return to Jim Crow and a return to back-alley abortions) is something Democrats are good at. Look what it did to Judge Roy Moore. (You don’t hear anything any more about his accuser). Look what happened to Mitt Romney in 2012 when he ran for president. During that election, Harry Reid accused Mitt Romney, FALSELY, of not paying his taxes in over 10 years. He knew it wasn’t true. After the election, when confronted about his lie and whether he felt remorse for stooping so low, he said no. His response epitomized what the Democratic Party’s politics of personal destruction would become: “It worked didn’t it? He lost, didn’t he?”

We cannot fall for their immoral, unethical tricks.  They detest the one thing that matters most to a conservative – Truth. They will twist it and ignore it all day, all night, all week-end long, and twice on Sunday, if they think it will advance their agenda. They know no scruples and they know no decency. Again, they are parasites. They are our modern-day plague.

 

References:

Senator Lindsey Graham during the Senate Confirmation Hearings –  https://www.youtube.com/watch?v=WunFJhgKwig

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SECESSION: Both a RIGHT and a REMEDY

 

SECESSION - constitution ripped in half

by Diane Rufino, September 23, 2018

Gene Kizer Jr. is a brilliant historian. He has written an excellent account of the causes of the War of Northern Aggression (aka, the War to Prevent Southern Independence; aka, the War Between the States; aka, the Civil War), in his book, Slavery Was Not the Cause of the War Between the States, and he has written some excellent articles as well, including on the right of secession. In his book and in his articles, he makes the case (most effectively) that secession was a reserved right of the states and that it was, in fact, exercised legitimately.

At the heart of the “Civil War” (which is, by the way, a most incorrect term for the conflict) was the right of the southern states to secede from the Union. That is, the lens through which we should look at, and assess, the war is whether Abraham Lincoln and his administration pursued a legal war by asserting that the eleven southern states that seceded from the Union had no constitutional right to do so.

The answer is that the southern states absolutely had the right to dissolve their union with the northern and more western states and their political bond to the federal government. Every state had and continues to have that fundamental right. Acknowledging this and therefore acknowledging that Lincoln incorrectly assessed the situation, he unconstitutionally assumed powers that were not granted to him, nor to the federal government in general.

Secession is a viable option to each state under three essential theories, and perhaps even others:

(1)  Each state has an essential right to determine its own form of government, under the natural right of self-determination. This natural right is articulated clearly in the second paragraph of the Declaration of Independence (“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 form, as to them shall seem most likely to effect their Safety and Happiness…”), and in fact, forms the basis for the decision of the thirteen American states to secede from Great Britain. The first paragraph of the Declaration makes this point quite clear:

       When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

The Constitution does not prohibit nor limit the natural right of secession, even in Article I, Section 9 which is the provision that puts limits on the sovereign power of the states, but rather includes the very powerful and declaratory Tenth Amendment which states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, because the Constitution did not expressly prohibit the right of secession, that right is reserved (continues to be reserved) to the states. And to make it absolutely clear that the right of secession is a state right, the states demanded that the Tenth Amendment be added to the Constitution as a restatement of that fact.

So, the states have the RIGHT to secede.

(2)  Secession is also a REMEDY, reserved to the states by the very nature of the Constitution. The Constitution is a social compact, which essentially is a contract, or an agreement, among the members of a society to cooperate for social benefits, such as mutual protection and to regulate relations among members. For example, a typical social compact calls for the sacrificing of some individual freedom for state protection and other public services. Social Compact was a theory articulated in the 16th, 17th, and 18th centuries by philosophers such as John Locke, Thomas Hobbes, and Jean-Jacques Rousseau, as a means of explaining the origin of government and how an organized society is thus brought into being.

As we all know, every contract and every agreement can be broken. There may be consequences, usually monetary, but no contract is absolutely unbreakable. A contract or agreement can be broken by a breach of obligations (for example, a person doesn’t make his obligatory mortgage payments; the lending bank can then foreclose under a breach of contract) which is an affirmative breach, it can be broken because the purpose for the contract has been eliminated (for example, an entertainer is contracted to perform once monthly at a Las Vegas casino but the casino is destroyed in a fire), or it can be broken simply because a party wants out. Contract remedies are essentially designed to put the non-breaching party in a position had the breach not occurred  (for example, a contractor quits a job in the middle of building an extension on a house; the contractor must pay to have the job finished, by another contractor) and they usually involve monetary damages. Sometimes, however, money cannot make the non-breaching party “whole” (put them back into a position had the breach not occurred) and a court will order “specific performance,” which means that the breaching party will be compelled to perform some service by the court.

When the states were debating the Constitution in their Ratifying Conventions, three states (Virginia, New York, and Rhode Island) included “Resumption Clauses” as specific conditions upon their ratification – clauses asserting the right to secede from the Union at a future time.

Virginia’s Ratification document (June 26, 1788) included this Resumption Clause: “The People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will.”

New York’s Ratification document (July 26, 1788) included this Resumption Clause: “That the Powers of Government may be resumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same.”

Rhode Island’s Ratification document (May 29, 1790) included this Resumption Clause: “That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness: That the rights of the States respectively to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same.”

Essentially, these clauses reserved the right of the state to leave the Union and resume all their sovereign powers and rights. With these clauses, the states simply put into writing a right they thought naturally belonged to their respective states. In fact, the right of secession was understood and agreed to by the other states, including George Washington who presided over the Constitutional Convention and served as a delegate from Virginia.

These clauses, because they were included in the ratification, and because they were accepted when the states formed into the Union, became applicable to every state that joined the Union. The fact that the states expressly reserved the right to secede (for no specific reason other than it may be “necessary to their happiness…”) shatters the notion and the argument by Abraham Lincoln in 1860 that the Union was intended to be perpetual and no state could secede.

Reserving the right to secede is an express reservation of the part of each state to un-make its agreement to join the Union. It is an express right to terminate its association with the compact (the Constitution), and thereby no longer be a party to the Union. Put simply, it is an express right of termination.

In contract law, the express right of termination is referred to as a Right of Rescission. Since it is a right to un-do the contract (to get out of the contract), it is a contract remedy.

Thus, the states have reserved secession as a REMEDY. (As a remedy to leave the Union, or secede from the Union) at some point when they deem it necessary for their happiness.

Rescission is defined as the unmaking of a contract between parties or the unwinding of a transaction. As mentioned above, it applies where a party to a contract exercises a Right of Termination that he or she had expressly included, or reserved, in that contract. In contract law, it is sometimes said that the party has included (or exercised) a right to rescind the contract. It is exercised in order to bring the party, as far as possible, back to the position in which it was before entering into the particular contract (the status quo ante). If the contract is between two parties, then both parties go back to the position they enjoyed before entering into the contract. If the contract – or compact – is between many parties, then technically only the party exercising the right of rescission is relieved from the compact; the others are free to retain the force of contract/compact.

If there is any doubt as to the intent of Virginia, for example, to take its Resumption Clause seriously, look at the language it used in its Ordinance of Secession, which it adopted in Convention on April 17, 1861 to secede from the Union:

AN ORDINANCE to Repeal the ratification of the Constitution of the United States of America, by the State of Virginia, and to resume all the rights and powers granted under said Constitution:

The people of Virginia, in their ratification of the Constitution of the United States of America, adopted by them in Convention, on the 25th day of June, in the year of our Lord one thousand seven hundred and eight-eight, having declared that the powers granted them under the said Constitution were derived from the people of the United States, and might be resumed whensoever the same should be perverted to their injury and oppression, and the Federal Government having perverted said powers, not only to the injury of the people of Virginia, but to the oppression of the Southern slaveholding States.

Now, therefore, we, the people of Virginia, do declare and ordain that the Ordinance adopted by the people of this State in Convention, on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and seventy-eight, whereby the Constitution of the United States of America was ratified, and all acts of the General Assembly of this State, ratifying or adopting amendments to said Constitution, are hereby repealed and abrogated; that the union between the State of Virginia and the other States under the Constitution aforesaid, is hereby dissolved, and that the State of Virginia is in the full possession and exercise of all the rights of sovereignty which belong to a free and independent State. And they do further declare that the said Constitution of the United State of America is no longer binding on any of the citizens of this State.

This Ordinance shall take effect and be an act of this day when ratified by a majority of the votes of the people of this State, cast at a poll to be taken thereon on the fourth Thursday in May next, in pursuance of a schedule hereafter to be enacted.

Done in Convention, in the city of Richmond, on the seventeenth day of April, in the year of our Lord one thousand eight hundred and sixty-one, and in the eighty-fifth year of the Commonwealth of Virginia

(3)  Secession, or the termination of the agreement to remain in the Union, is a viable contract/compact remedy under breach theory.  When one signing member to the agreement violates or breaches its obligations, then the other signing member (or any of a number of other signing members) are relieved of their obligations under the agreement. In other words, the breach by one party, especially if material in nature (that is, if it is enough to fundamentally alter the relationship of the states in relation to one another or to affect the ability of the federal/common government to serve all states in a fair, equal, and impartial manner) is enough to invalidate the entire agreement altogether, thus allowing the other party, or other parties, to walk away and also allowing remaining members to continue to enforce the agreement if they so desire.

In the case of the Southern states, they seceded over several material breaches of the compact – several violations by the Northern states of their obligations under the Constitution:

(a)  They believed the Protective Tariff was an unfair and confiscatory tax on the South, almost completely discriminatory in nature and punitive as well. It was no secret that the North had a great disdain for the South and its values and its “simple” agricultural lifestyle (and even its use of slavery). According to the Southern states (John C. Calhoun of South Carolina articulated it probably better than most), the federal government was a common government that was created and intended to serve each state equally. The North knew full well that the protective tariffs (1828 and 1832) were born almost exclusively and to their detriment, by the southern states. But the Northern states, and particularly northern businesses, benefitted far too greatly from the confiscation of those tariff revenues (more than half of the revenue was funneled almost directly from the South to the North) to ever consider giving them up. In 1860, Abraham Lincoln ran on a platform of increasing and the protective tariff to its highest level ever. That platform issue, together with his promise to prohibit the spread of slavery into new territories and future states, were enough for all of the Southern states to refuse to even put his name on the ballot.  In fact, the Morrill Tariff was passed by the US Congress and signed into law by President James Buchanan in 1861, just two days before he left office and Lincoln was inaugurated. Lincoln kept his promise to enforce that tariff.

If the federal government was not serving the states equally, and if it had merely become a vehicle hijacked by one region of the country to serve its own interests (at the great expense of the other region), then the states of the North had breached their obligations and the very purpose of establishing the Union had become frustrated. The South believed the tariff issue constituted a material breach and thus gave them ample reason (under the Declaration of Independence – “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 form, as to them shall seem most likely to effect their Safety and Happiness…”) to leave the Union.

(b)  Lincoln’s inauguration as a purely sectarian president was of great concern to the South. His interests and agenda were solely to further those of the North.  His promise to prohibit the spread of slavery to any new territory and any new state was a violation of the US Constitution.  Article IV guarantees every new state to the Union the right to be admitted on the same footing as every other state. Slavery, unfortunately, was protected under the Constitution, and therefore, every new state added to the Union would be subject to its same terms and conditions. The Southern states believed that Lincoln’s government was acting in abuse of the Constitution and because the North supported his agenda, those states, again, breached the terms of the compact and thus gave the states of the South reason to dissolve their bonds with the Union.

(c)  The Northern states routinely refused to enforce the Fugitive Slave Laws, which were laws enacted pursuant to the Fugitive Slave Clause of the US Constitution (Article IV, Section 2, clause 3). To the South, the Fugitive Slave Clause was a valued provision in the Constitution.  The laws were widely ignored or frustrated (were “nullified”) by states, localities, and even by individuals (such as those who organized into mobs in order to free runaway slaves from local prisons).  The states of the South took notice and in fact, in some of the ordinances of secession, they cited the refusal of the North to comply with the Fugitive Slave Laws, as well as its support of violence to stir slaves to revolt (such as the John Brown massacre; Brown was vaulted to martyr status by Northern members of Congress).

The Fugitive Slave Clause of the US Constitution (aka, the Slave Clause or the Fugitives From Labor Clause) required that a “person held to service or labour” (usually a slave, apprentice, or indentured servant) who flees to another state to be returned to the owner in the state from which that person escaped. The provision was rendered moot with the Thirteenth Amendment, which abolished slavery. The exact text of the Fugitive Slave Clause read: “No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.”  The North refused to help enforce the Fugitive Slave Laws, claiming that it has no obligation as a state, to do so. The Laws were federal laws and if the federal government intended for them to be enforced, it was going to have to do so itself – with its own agents, its own courts, and its own prisons. The states and localities refused to assist – they would not use their officers, their prisons, any state personnel, or even any state court to uphold the laws and return runaway slaves back to their owners.

The states of the South believed the states of the North had a compact (constitutional) obligation to honor its provisions, including those it didn’t approve of.  Because the North refused to enforce the Fugitive Slave Laws and frustrated the Fugitive Slave Clause of Article IV, which was included for the benefit of the South, the Southern states concluded that the Northern states committed a material breach of the terms of the compact and hence, they were justified in leaving the Union.

One should read Gene Kizer Jr’s article “The Right of Secession” (link provided below). It provides an excellent overview of the legality of secession, in particular, as a right endowed and reserved to each state. Then one should read his most excellent book, Slavery Was Not the Cause of the War Between the States.

 

References:

Stephen C. Neff, “Secession and Breach of Compact: The Law of Nature Meets the United States Constitution,” Akron Law Review: Vol. 45: Issue 2, Article 4 (June 2015).  Referenced at:  https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1067&context=akronlawreview

Virginia’s Ordinance of Virginia (April 17, 1861) – http://www.nellaware.com/blog/virginia-ordinance-of-secession.html\

Gene Kizer Jr, “The Right of Secession,” Bonnie Blue Publishing.  Referenced at:  http://www.bonniebluepublishing.com/The%20Right%20of%20Secession-FULL%20PAGE%20FORMAT-USE.htm

Gene Kizer Jr., Slavery Was Not the Cause of the War Between the States;  Charleston Athenaeum Press (November 1, 2014).

Gene Kizer Jr., “Barbarians At the Gate,” Abbeville Institute, March 8, 2018.  Referenced at:  https://www.abbevilleinstitute.org/blog/the-barbarians-at-the-gates/

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Why the Issue of Confederate Memorials is of Significant Consequence

Mark Creech

by Reverend Mark Creech, Christian Action League, Aug. 24, 2018

Lately, a lot of emotion has been spent over Confederate monuments in the Tar Heel state.

Silent Sam, the statue on the campus of the University of North Carolina, Chapel Hill, was gleefully pulled from its pedestal by a mob, August 20th. Former alumni, as well as citizens across the state, were outraged at the lawless act and the justifications given for it.

Two days later, August 23rd, the North Carolina Historical Commission rejected Governor Roy Cooper’s request to relocate three Confederate monuments on state Capitol grounds. The Commission opted instead to provide contextualization signage and raise funds for constructing and erecting African-American monuments.

Contextualization creates angst for many, while others rail against the Commission’s decision to leave the monuments standing. The situation remains a hotbed of passion on both sides.

I have written on this subject a number of times. I cannot say that everyone who is a part of the organization I represent, the Christian Action League, believes as I do on the topic. Nevertheless, I speak because I believe the matter is one of significant import to our state, country, and Western Civilization.

To understand history, it’s important that one hears all sides of the story. When memorials such as Confederate monuments are pulled down, it’s because only one narrative is being allowed.

Critics of Silent Sam said that the monument sends a message of racism and White Supremacy. They argue it was erected during a period in history when whites wanted to show that they still ruled the south.

Their proof? Julian Carr’s speech at the unveiling with its egregious and wrongheaded remarks about what the Confederate soldier meant to the Anglo Saxon race and how he, Carr, personally horsewhipped a black woman after insulting a Southern white lady. Also cited as evidence are the United Daughters of the Confederacy, who spearheaded and funded the monument. Some contend the UDC is a white supremacist organization, an accusation the UDC denies.

Critics of Silent Sam also argue the Confederate soldier was a traitor to his country and a defender of slavery. Memorials to Confederates glorify treason and the subjugation of the black race, they say.

I’m certain some sophisticate will charge that I’m just a backward preacher from the South with a misinformed and misguided allegiance to a terrible group of people. But I can’t agree the issue is that simple.

White Supremacy?

Thomas J. Crane, an attorney who represents individuals in employment actions and has appeared in both state and federal court, says the charges of racism against statues like Silent Sam and other Confederate memorials wouldn’t succeed in a court of law.

In a most intriguing article titled, “Confederate Monuments and Racism,” Crane writes:

     “I represent victims of discrimination. Like historians, I am in the business of accusing persons or entities of discrimination. But, if I tried to accuse a person or statue of racist bias based solely on speeches by third parties, I would likely be sanctioned by the court for filing a frivolous lawsuit…There are several alternative explanations for why these statues were erected.

      The challenge regarding the Confederate monuments is there is always a legitimate alternative explanation. The United Daughters of the Confederacy was founded expressly to commemorate the deceased Confederate veteran. The Confederate States of America was not the United States of America. That means there was no government effort to mark the passing of these hundreds of thousands of veterans. If the UDC or some organization like the UDC did not raise the funds for these monuments, it would not be done…

      Certainly in most communities, the Daughters were part of the white power structure. But, being part of the dominant white society does not mean those Daughters necessarily sought to support Jim Crow laws when they erected those monuments.”

Crane is right. There are many other valid reasons for Confederate monuments, which received broad support in the day of their placing.

History shows Confederate veterans were dying at the time and family members wanted to memorialize their fathers, brothers, and husbands before their passing. Others felt that their loved ones who suffered, sacrificed, and died in that great conflict deserved better recognition and more prominence than what they received in a cemetery for the Confederate dead. Reconstruction had also ended, and there was more money available for building and raising these memorials. Moreover, such monuments were seen as reunification symbols, where the Confederate heritage was brought into the larger American context, acknowledged, respected, and tolerated.

One might ask, if the sole purpose of these monuments was to lionize White Supremacy and slavery, why wasn’t this stated on the monuments? No such pattern exists.

In the case of Silent Sam, the plaque on the memorial simply read: “To the sons of the University who entered the war of 1861-65 in answer to the call of their country and whose lives taught the lesson of their great commander that duty is the sublimest word in the English language.”

Confederates Soldiers Were Traitors?

In my estimation, there is no basis for the indictment that Confederate soldiers were traitors. It’s true the war started when Southerners fired on Fort Sumter in South Carolina, but who provoked the conflict is still in dispute by historians.

Lincoln sent a ship to re-provision Fort Sumter, which was a federal fort in Charleston. South Carolina had already seceded from the Union, along with six other states. Certainly, if secession had any meaning, the state couldn’t permit a foreign power to maintain a military fort on its own soil. When negotiations broke down between President Lincoln’s administration and President Jefferson Davis’ administration for the transfer of the fort to South Carolina, Confederates fired on Fort Sumter, which resulted in Union forces surrendering.

Although there were no casualties, Lincoln sent 75,000 troops into the “rebel” states, which resulted in four additional Southern states, including North Carolina, seceding from the Union.

The Southern states also seceded from the Union based on the Tenth Amendment to the U.S. Constitution. The right for states to legally secede was widely accepted. Even Alexis de Tocqueville, the French political thinker and historian, who visited America to study its system of government, said the Union “was formed by the voluntary agreement of the states; and these, in uniting together, have not forfeited their nationality, nor have they been reduced to the condition of one and the same people. If one of the states chose to withdraw its name from the contract, it would be difficult to disprove its right to do so.”

Again, traitors? How can Confederate soldiers be traitors when the states in which they resided had seceded from the Union, as was their Constitutional right, and formed a new country of which they were citizens?

Confederates Soldiers Fought for Slavery?

Neither is it right to contend that Confederate soldiers were all about defending slavery. This is not to say the conflict was never about slavery. Instead, its to argue that the reason they fought was more nuanced.

Thomas E. Woods, an American historian, who is both a Harvard and Columbia University graduate, correctly argues in his book, The Politically Incorrect Guide to American History, that “slavery was far from the only issue on Southerner’s minds, particularly since the great majority of Southerners did not even own slaves. For their part, Robert E. Lee and Stonewall Jackson, two of the South’s best-known Generals, described slavery as ‘a moral and political evil.’ Lee had even been an opponent of secession, but fought on the side of Virginia rather than stand by as the federal government engaged upon the mad project of waging war against his state. Recall that Virginia, Tennessee, Arkansas, and North Carolina seceded only after Lincoln had called up 75,000 volunteers to invade the South and prevent its secession. These four states, therefore, certainly did not secede over slavery, but rather over Lincoln’s decision to use military force to suppress Southern independence.”

Additionally, Civil War historian James McPherson’s incredible research, consulted a sizeable number of Union and Southern soldiers’ letters and diaries on the way they viewed the war. The results clearly determined that they were concerned about saving the Union, the right of Secession, Constitutionalism, the Founding Fathers, but not slavery.

In other words, Southern politicians might have had slavery on their minds. However, the issue wasn’t a primary concern for Confederate soldiers on the battlefield. They weren’t putting their lives on the line each day, their bodies being torn and broken by cannonballs, bullets, and bayonets, just so they could enslave, whip, or lynch black people. The notion is preposterous.

Instead, they fought primarily for reasons of patriotism. They fought because they believed their homeland had been invaded. They fought for fear of the federal government enslaving them, and preventing their own self-determination. They fought for their independence. They fought for the commercial freedom of the South. They fought because they had lost family members through acts of brutality by the enemy. They fought because an occupying force was often denying their rights. They fought because they didn’t believe they deserved the scourge of their wives eating rats, their children starving, and their property reduced to ashes.

Whether they believed in slavery or not, whether their government was right about it or not, the South was their home, and they would give their lives in defense of it.

Oversimplification and Overreach —

Certainly, these affairs were the larger part of the equation. Therefore, making Confederate monuments primarily about White Supremacy, treason, and slavery is gross oversimplification and overreach.

In the same article referenced earlier, Crane contends that “alleged prejudice must be based on more than mere speculation and tenuous inferences.” The case must be proven, and the preponderance of the evidence must reasonably conclude racist intent. The evidence doesn’t show this to be the reason for erecting Confederate monuments. Even racial motivations do not necessarily constitute a racial purpose.

With these assertions in mind, I will conclude with these thoughts.

True Tolerance Essential —

America is a place of many cultures, many political opinions, and many values. True tolerance, which respects individuals without necessarily approving of everything they believe or espouse, is essential.

As a white man, I may not be able to fully connect with a monument like the National Memorial for Peace and Justice in Alabama, which is dedicated, in part, to the way people of color are often burdened with presumptions of guilt and police violence. Nevertheless, I can reverence and appreciate my fellow Americans. This same deference should go the other way.

To take down memorials placed in honor of deceased people who forewent their health and happiness, forfeited their honor and substance for the ones they loved in a time of war, is to say such people and the ones for whom they spent their affections don’t count. It’s to say their ancestors are evil and beyond the recognition of any noticeable or worthy virtues.

Orwellian Ends —

Moreover, pulling down said monuments, more often than not, produces Orwellian ends. If the monuments are taken down, there remains only a one-sided account. There is no way to ponder them and the full significance of their meaning, as well as the lessons they can teach.

Taking down monuments and memorials is a revolutionary tactic of history. Burn the books. Destroy the landmarks. Topple the statues. Flatten the memorials.

In a quote from George Orwell’s dystopian novel, 1984, we read, “One could not learn history from architecture any more than one could learn it from books. Statues, inscriptions, memorial stones, the names of streets, anything that might throw light on the past had been systematically altered.”

Here’s another: “Every record has been destroyed or falsified, every book rewritten, every picture has been repainted, every statue and street building has been renamed, every date has been altered, and the process is continuing day by day and minute by minute. History has stopped, nothing exist except an endless present in which the Party is always right.”

Isn’t this what we are witnessing? – an intentional and imposed ignorance.

It’s an appropriate question to ask where this will end. What else besides Confederate monuments is next to be removed or hidden away in some rather obscure place? Will it be statues of Washington and Jefferson? What about the U.S. Flag? Could it be the Christian Cross on steeples and buildings? Might it be any reminders of America’s heritage or Western Civilization that causes offense, makes people feel unwelcome, or hurts their feelings?

It isn’t spurious to question whether the goal or the outcome will be to lose ourselves in the mass mind and the mass will.

While there was cheering at the fall of Silent Sam at UNC, the lawless action of the mob which perpetrated the crime signals a time of future mourning. A time when intolerance is supreme, lack of knowledge predominant, and uniformity enforced.

Yes, this matter is of considerable import to our state, nation, and Western Civilization.

 

Reference:

Reverend Mark Creech, “Why the Issue of Confederate Memorials is of Significant Consequence,” Christian Action League, Aug. 24, 2018.  Referenced at:  https://christianactionleague.org/news/why-the-issue-of-confederate-memorials-is-of-significant-consequence/

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What Happened?

TRUMP - cartoon funny (Peanuts)

by Diane Rufino, September 22, 2018

Wow, how did it come to this:??? How did it come to be that when one side is happy, the other is absolutely miserable and on the verge of a breakdown. How did it come to be that when one group of people views the country as being Great Again, being prosperous and strong, the other group views the country as being in a wretched inexcusable state?

I guess we no longer have that one thing in common that truly unites us — the desire for a strong, safe country, where people live equally and predictably according to the Rule of Law, and where government is restrained by the Constitution so that individuals can pursue the American Dream without much interference and exercise their freedoms most robustly. I guess those were the old days when the health and prosperity of our country actually mattered, and the prosperity of our fellow citizen mattered as well.

How can we be the UNITED States when we aren’t even a UNITED people?

It is truly so sad.

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Constitution Day 2018

RWPC - Constitution Day 2018

Today was Constitution Day.

On September 17, 1787, the Constitutional Convention in Philadelphia concluded. 39 of the 55 delegates to the Convention signed the final product, including its primary author, James Madison, and its eldest member, Benjamin Franklin.

The Convention was called by Congress for the specific purpose of “amending the Articles of Confederation.” The specific defects were in the ability of the Congress to collect tax revenue from the states and in its weak authority to regulate commerce among them. But the organizers of the Convention, including James Madison, Edmund Randolph, and Alexander Hamilton had other plans. They intended to scrap the Articles altogether and draft a different form of government altogether, relying somewhat on the Articles of Confederation for guidance. In fact, Madison had already written a draft of that new government prior to the Convention and had asked Randolph, Governor of Virginia and member of one of Virginia’s most prominent families, to present it.

But what Madison had planned (which was a more national type of government; a powerful government of ambitious powers) is not what the majority of delegates could agree on. It would take 4 months of heated discussion and debate to convince Madison that a federal government, a government of limited powers and checks and balances, was the best form of a common government but the only form that the states would ever agree to.

Things didn’t go as smoothly as expected at the convention. Delegates became frustrated over the constant and fruitless bickering and the inability to made any significant progress in amending the federal government. Many left in disgust and many left to go back to their families, becoming frustrated in how long the convention was dragging on.

Benjamin Franklin, ever the optimist ,even at the age of 81, gave a poignant assessment of the Convention in his final speech before the Constitutional Convention:

“I doubt too whether any other Convention we can obtain, may be able to make a better Constitution: For when you assemble a Number of Men to have the Advantage of their joint Wisdom, you inevitably assemble with those Men all their Prejudices, their Passions, their Errors of Opinion, their local Interests, and their selfish Views. From such an Assembly can a perfect Production be expected? It therefore astonishes me, Sir, to find this System approaching so near to Perfection as it does; and I think it will astonish our Enemies, who are waiting with Confidence to hear that our Councils are confounded, like those of the Builders of Babel, and that our States are on the Point of Separation, only to meet hereafter for the Purpose of cutting one another’s throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure that it is not the best.”

To honor Constitution Day, members of the Republican Women of Pitt County and the Eastern NC Tea Party joined with members of the Daughters of the American Revolution to ring bells at 4:00 pm (to mark the time of day the Constitution was signed) on the front steps of the Sheppard Memorial Library in downtown Greenville and then to pass out free pocket constitutions to those inside.

HAPPY CONSTITUTION DAY, EVERYONE !!

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Thomas Jefferson Articulates the Remedy of Nullification in an Opinion Written to George Washington in 1791

THOMAS JEFFERSON - wire glasses

by Diane Rufino, September 16, 2018

In 1791, Thomas Jefferson wrote an opinion on the constitutionality of a National Bank. It is an important commentary on the meaning and intent of the US Constitution, in particular the two general clauses – the General Welfare Clause and the Necessary and Proper Clause.

President George Washington’s Secretary of the Treasury, Alexander Hamilton proposed the creation of a national bank. He advised that a national bank would “give great facility or convenience in the collection of taxes” and would facilitate the government’s assumption of the states’ Revolutionary War debts, thus serving the taxing power of the federal government. Not sure if such a bank was a constitutional exercise of government legislative power, Washington asked Hamilton and Jefferson, his Secretary of State, to articulate their positions.

And so, on Feb. 15, 1791, Jefferson submitted an opinion to Washington against the creation of a National Bank, explaining that it was not authorized by any specific delegation of power nor was it contemplated by any of the general clauses. In specific, he articulated that the “Necessary & Proper” Clause meant that Congress could take action only when it was necessary (and proper) to bring into effect any of the specifically enumerated powers; that is, without those means without which the grant of power would be meaningless. The clause did not mean Congress could pursue action that was merely convenient or helpful.”  Jefferson said that all the functions of which Hamilton was concerned – the collection of taxes, the paying of war debt, etc – could all be carried into execution without a bank. Therefore, as a constitutional matter, he concluded that a bank was not necessary, and consequently not authorized by the “Necessary & Proper” phrase.

Hamilton’s opinion was different. He argued that the Constitution, in Article I, Section 8, created a legislature not only of specific powers but of implied powers as well.

In the end, the House and then the Senate approved a bill establishing a charter for the first National Bank, and President Washington, siding with Hamilton, signed it. The first Bank of the United States was built in Philadelphia.

Chef Justice John Marshall, the man credited with transforming the role of the Supreme Court, later chose to ignore Jefferson’s opinion and commentary when the constitutionality of the national bank came before the Court in 1819 – in McCulloch v. Maryland.  His opinion in that case echoed Hamilton’s view that the federal government is indeed one of express AND implied powers, an issue that was DIRECTLY addressed and dismissed at the Constitutional Convention in 1787 and again when states expressed concern in their ratifying conventions.

While this Opinion by Thomas Jefferson shows us how our federal judiciary willingly chooses to ignore four country’s most important and most credible authority on the meaning and intent of the Constitution when it is faced with the chance to assign greater power to the federal government, there is another reason why this opinion is important: It explains the intended checks and balances on the federal legislature, both horizontal and vertical. The Supreme Court would later find the most important check to be unconstitutional. Imagine that.

At the end of his Opinion, Jefferson writes:

“The negative of the President is the shield provided by the Constitution to protect against the invasions of the legislature: 1. The right of the Executive. 2. Of the Judiciary. 3. Of the States and State legislatures. The present is the case of a right remaining exclusively with the States, and consequently one of those intended by the Constitution to be placed under its protection.”

In other words, the rightful checks on the lawmaking power of the US Congress include:

(1)  The President (he can veto or refuse to sign the bill into law; or he can, by Executive Order, explain that certain provisions are unenforceable because they exceed authority)

(2)  The courts  (the federal courts can strike down a law as “unconstitutional”)

(3)  The States and State legislatures (The States can separately find a federal law to be unconstitutional, per their understanding of the Constitution and per their reserved powers under the Tenth Amendment)

Number (3) above is NULLIFICATION and includes INTERPOSITION. These are the rightful remedies reserved to each State, according to Jefferson when the federal government exceeds its delegated authority under the Constitution and specifically, when it attempts to legislate in areas reserved to the States under the Tenth Amendment. A law passed without constitutional authority is a law is a nullity; it is unenforceable.  And it SHOULD be.  It is up to the States, as the most important of the Checks and Balances (a vertical check) to make sure that the people, protected by the Constitution as to the lawful bounds of government, are not subject to unconstitutional laws.

Here you have it, from the earliest days of our republic, the clear and simple articulation of the right of Nullification.

Jefferson, of course, would go on to articulate it much more clearly and forcibly, in the Kentucky Resolves of 1799 (a series of resolutions he wrote secretly for the Kentucky state legislature to oppose the highly unconstitutional Alien & Sedition Acts, enacted by the administration of John Adams. In the Kentucky Resolves of 1799, Jefferson wrote:

“If those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a NULLIFICATION, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact.”

Nullification is, and has always been, a rightful remedy by which each State can review the constitutionality of government acts and policy (and even federal court opinions) and if an abuse is found, to protect the citizens in their States from the tyranny that would result from their enforcement.

 

References:

Thomas Jefferson, Opinion on the Constitutionality of a National Bank, Avalon Project (Yale Law School).  Referenced at:  http://avalon.law.yale.edu/18th_century/bank-tj.asp

Thomas Jefferson to George Washington, February 15, 1791, Opinion on Bill for Establishing a National Bank, from the Works of Thomas Jefferson in Twelve Volumes, from the Library of Congress.  Referenced at:  https://memory.loc.gov/service/mss/mtj/mtj1/013/013_0984_0990.pdf    [NOTE:  The Library of Congress was formed when Thomas Jefferson donated the contents of his personal library]

The Kentucky Resolves of 1799 (The Constitution Society).  Referenced at:  http://www.constitution.org/cons/kent1799.htm

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Washington DC: It’s Not Government, It’s a Battlefield

MEME - this is not government (this is a battlefield

by Diane Rufino, Sept. 14, 2018

This is my latest meme. And I’m serious about its message.

DC politicians make me sick. They are quite literally the most wretched of human beings. They (mostly Democrats, let’s face it) refuse to act in the best interests of the country or of its citizens, but rather, act for pure political purposes only – for the benefit of their party, for the political power that its political elites will enjoy.

Why else would they make it their key political objective to impeach a president who has worked tirelessly to Make America Great Again. And it’s true, he has made America great again; he has the intuition, the insight, the political saavy, the conviction, and the dedication to enact policies to benefit the country and its people. His goal is not to redistribute American’s wealth and success to the rest of the world, but to keep and protect that wealth here. The other party cannot say the same. The president, despite the character flaws greatly exaggerated by the other side, has the decency to honor the promises he made on the campaign trail. His primary goal each day is to honor those promises to return to the people the grand notion that elected officials serve the people and that government works for them.

In what sensible universe would anyone make it their key political objective to take this honorable president out of office? The only answer that makes sense is that President Trump is pursuing policies that are so completely and directly in opposition to the agenda of the Democratic PARTY… not necessarily the people who identify as Democrats, but of the PARTY. Extrapolating from that, the only answer that makes sense is that the Democratic PARTY does not want the federal government to put America first.

The Democratic Party offers no path or vision for our country other than “impeach Trump.” In other words, the Democratic Party’s plan is to reverse the path of the Trump administration — to increase taxes, to increase burdensome regulations on businesses, to roll back the policies that have created hundreds of thousands of good jobs (jobs paying much more than minimum wage), to prostrate ourselves to world leaders and to give them support from the American taxpayer and without concern for the taxpayer, to undo trade deals and go back to exporting our wealth, to open our borders to uncontrolled illegal immigration, to flood illegals onto our entitlement programs and in our public education system….. in general, to overload our American systems so that they crash and true socialism or even worse arises out of their ashes.

The most important civic duty an American citizen has is to be informed and educated and responsible at the ballot box in order that our country has the integrity and strength for successive generations.

What is the key word in the phrase that once described our government — “government of the People, by the People, and for the People” ? — THE PEOPLE.

We can only have such a government if the political parties stop being so absolutely adversarial, if they stop being so critically opposite, and if they stop putting their power-thirsty interests and agenda above the interests of the people. We can only have a functional governance if they stop using the government as their battleground.

DC politicians and DC politics make me sick.

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