Category Archives: Separation Of Powers

Nolan Exposes McCain’s Antipathy for Civil Liberties in Arizona Senate Debate

Civil Liberties, Crime and Punishment, Death Penalty, Democrats, Doublespeak, Dumbasses and Authoritarians, Election '10, Hubris, Human Rights, Independents, Individual Rights, Legal, Libertarians, Liberty, Military, Multimedia, Politics, Republicans, Security, Separation Of Powers, The Bill Of Rights, The Surveillance State, torture, War on Terror

David Nolan, co-founder of the Libertarian Party and author of “The World’s Smallest Political Quiz” (to which the result is plotted on the “Nolan Chart”) is running against none other than the most recent Republican presidential nominee, Sen. John McCain for his senate seat. KTVK-3TV hosted a debate last Sunday which included Sen. McCain along with challengers Rodney Glassman (D), Jerry Joslyn (G), and David Nolan (L). Believe it or not, all candidates were given equal time to debate the issues; something that is usually missing from the debates I’m accustomed to watching.

Despite the skills of those challenging Sen. McCain – particularly the two 3rd party candidates, the latest Real Clear Politics Average Poll shows McCain with a comfortable 17.4 point lead over his closest challenger, Rodney Glassman. Critics of 3rd parties look at poll results like this and wonder “what’s the point” of allowing 3rd party candidates to participate when their chances of winning are so miniscule.

IMHO, I believe that both Nolan and Joslyn did a fine job demonstrating why 3rd party candidates should be included by raising issues, proposing solutions, and exposing the shortcomings of the two party system and the candidates themselves to voters and concerned citizens.

In the 3rd part of this debate (below), Nolan brought up a McCain sponsored bill that is most likely not on the radar of very many people: S. 3081, the “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010.”

(Beginning at -6:14 in part 3 of the debate)

Nolan: “One of the reasons I got into this race is that right now, at this very moment Sen. McCain is a sponsor – I think the lead sponsor of Senate Bill 3081 […] a bill which would authorize the arrest and indefinite detention of American citizens without trial and without recourse. This is one of the most dangerous, evil, un-American bills that’s ever been proposed in congress and nobody who would sponsor such a bill should be sitting in a seat in the United States Senate.”

And what was Sen. McCain’s response to the charge by Nolan of sponsoring such a “dangerous, evil, un-American” bill?

McCain: “Well again, I hope that our viewers won’t judge me by the remarks just made [by Nolan], they may be a little bit biased.”

Nolan raised the issue again in his closing remarks. Sen. McCain did not respond.

Okay, fair enough. Perhaps Mr. Nolan is biased. He is trying to take his job after all. Fortunately for now at least, the average person with an internet connection can freely search and find the bill and learn of its contents. Let’s take a look and see how “biased” Mr. Nolan was and determine whether or not Arizona’s senior senator should be “judged” by the bill he is currently sponsoring.

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010’.

SEC. 2. PLACEMENT OF SUSPECTED UNPRIVILEGED ENEMY BELLIGERENTS IN MILITARY CUSTODY.

(a) Military Custody Requirement- Whenever within the United States, its territories, and possessions, or outside the territorial limits of the United States, an individual is captured or otherwise comes into the custody or under the effective control of the United States who is suspected of engaging in hostilities against the United States or its coalition partners through an act of terrorism, or by other means in violation of the laws of war, or of purposely and materially supporting such hostilities, and who may be an unprivileged enemy belligerent, the individual shall be placed in military custody for purposes of initial interrogation and determination of status in accordance with the provisions of this Act.

(b) Reasonable Delay for Intelligence Activities- An individual who may be an unprivileged enemy belligerent and who is initially captured or otherwise comes into the custody or under the effective control of the United States by an intelligence agency of the United States may be held, interrogated, or transported by the intelligence agency and placed into military custody for purposes of this Act if retained by the United States within a reasonable time after the capture or coming into the custody or effective control by the intelligence agency, giving due consideration to operational needs and requirements to avoid compromise or disclosure of an intelligence mission or intelligence sources or methods.

“Suspected unprivileged enemy belligerent” ? No, that doesn’t sound Orwellian at all. Now let me highlight Sec. 3b3 and let you, the reader decide if any of this strikes you as “dangerous,” “evil,” or even “un-American.”

(3) INAPPLICABILITY OF CERTAIN STATEMENT AND RIGHTS– A individual who is suspected of being an unprivileged enemy belligerent shall not, during interrogation under this subsection, be provided the statement required by Miranda v. Arizona (384 U.S. 436 (1966)) or otherwise be informed of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona.

Talk about double speak! Such individuals are not “criminal suspects” who in our criminal justice system normally considers “innocent until proven guilty” who have Constitutionally protected rights but “suspected enemy belligerents” who are apparently assumed guilty until a high ranking official in the executive branch, or the president himself determines otherwise.

Sorry, I’m getting a little ahead of myself. I haven’t even got to the most disturbing part of the bill yet – Section 5:

SEC. 5. DETENTION WITHOUT TRIAL OF UNPRIVILEGED ENEMY BELLIGERENTS.

An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(c)(2) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.

So here we are in 2010, Sen. McCain et al advocating giving American citizens POW status under Article 5 of the Geneva Convention as they may be “enemy belligerents” in an ill-defined and open-ended “war on terror.” The provisions of the USA PATRIOT Act which were originally supposed to be temporary but now as a practical matter, a permanent fixture of federal law, apparently don’t go far enough to dismantle what is left of the Bill of Rights.

One thing I found interesting in this debate was not only Sen. McCain’s response (or lack thereof) but also the deafening silence of his Democrat challenger who could have easily picked this issue up and ran with it if he shares Nolan’s civil liberties concerns. Could it be that Mr. Glassman would also support this bill if he were elected to replace Sen. McCain? If so, I wouldn’t be at all surprised considering that President Obama who is a member of the same political party as Glassman actually believes he can assassinate Americans without due process of any kind. Both the Obama and Bush administrations have even gone as far to say that if or when the president makes a “state’s secrets” claim, no court can even consider the legality of such cases. There’s little doubt in my mind that President Obama would sign S. 3081 into law as this would only enhance his power.

Maybe for now on we should stop referring to the first ten amendments as “The Bill of Rights” and call them “The Bill of Privileges.” This would at least be honest because rights cannot be taken away and therefore can never be “inapplicable.”

Stephen Littau
http://fpffressminds.blogspot.com/

Ken Buck’s “Radical” Proposal to “Rewrite” the Constitution

Constitution, Democracy, Democrats, Election '10, Election Law, Elections, Federalism, Founding Fathers, History, Liberty, Multimedia, Politics, Republicans, Separation Of Powers, Tea Party, Theory and Ideas

I do not support Ken Buck in the Colorado senate race and I will not vote for him. Actually, between his extreme position on abortion, on banning common forms of birth control, and his sexist comments he made about his primary opponent, I think he is quite a jackass.

But even as much as I have some major concerns about Ken Buck and dislike him personally, the Democrats are running some ads that I believe are lacking in historical context and misrepresent the founding principles of our constitution and our republic.

Here’s the first ad entitled “Different”:

This “radical” idea that the state governments would choose their senators instead of the voters is hardly a new idea conjured up by Ken Buck. If we accept the notion that Buck would “rewrite” the Constitution, he would merely be changing the way senators are selected back to the way the founders intended 223 years ago. It wasn’t until the 17th Amendment was passed in 1913 that senators were chosen by popular vote in each state. In fairness, the ad does mention that for “nearly 100 years” Colorado voters picked their senators. It seems to me that the Democrats are counting on the average historical ignorance of civics 101 of the average person to be outraged at such an “un-democratic” idea.

Now to the second ad entitled “Represent”:

The second ad repeats the “rewrite the Constitution” claim but goes even further “change the whole Constitution?” Repealing the 17th Amendment is hardly changing the whole Constitution.

And what about this scandalous idea that Ken Buck wouldn’t necessarily “represent” what Coloradans wanted and would “vote the way he wanted”? Is this really what we want – senators and representatives with no will of their own?

To the lady in the ad who says “If Ken Buck doesn’t want to listen to what we have to voice our opinion then why is he even running?” my response would be that if its up to each senator to poll his or her constituents on each and every issue, why do we even need senators at all? This is why we have elections. If your congress person or senator consistently acts contrary to your principles, vote for someone else on Election Day. If you have a problem with Ken Buck’s policy positions as I do, don’t vote for him.

Despite popular belief, our system of government is not a democracy but a republic based on the rule of law. The senate was designed to be a counter balance to the fickle whims of the majority of citizens. Prior to the 17th Amendment, senators were selected by state legislatures so that the states themselves would be represented at the federal level while the people were represented directly in the House of Representatives.

There are certainly some good arguments for repealing the 17th Amendment that I don’t believe are “radical” at all. For one, if the state legislatures picked the senators, perhaps there would be more reason to pay attention to government at the state level. How many people in 100 can name their senator and representative in their state legislature let alone have any idea about their voting records?

Also, because senators are chosen by popular vote, some argue that their loyalties are not so much with the states they are supposed to represent but the senate itself. As a result, its much easier for the federal government to blackmail the states via unfunded mandates and holding funds hostage if states pass laws the federal government disagrees with (ex: forcing all states to keep the drinking age at 21 in order to receive highway funding).

Certainly, the repealing the 17th Amendment wouldn’t be a panacea and there are probably some very persuasive arguments in supporting the 17th Amendment. No system of government is perfect even in its most ideal form.

The founders were keenly aware that majorities could be as tyrannical as any monarch or dictator. A more democratic government does not necessarily mean people have more liberty; the opposite is more likely the case.

Stephen Littau
http://fpffressminds.blogspot.com/

Counterpoint: Civil Disobedience Or Not, Nullification Is Unconstitutional

Constitution, Federalism, Founding Fathers, History, Legal, Point/Counterpoint, Separation Of Powers

In his post that started this debate, Brad Warbiany makes this point about the idea that the individual states have the power, or at least the right, to make declarations as to the Constitutionality of Federal laws:

Nullification is the civil disobedience of Federalism. Is it legal? No. After all, the Supremacy Clause and judicial review see to that. But it wasn’t legal for Rosa Parks to sit at the front of the bus, or for black students to sit at a “Whites-only” counter at Woolworth’s. Sometimes, the law is a ass. Sometimes, you need to disobey to make a point.

(…)

Viewed this way, nullification is less about disobedience as it is about changing policy. Nullification is a tactic in a wider strategy. It is a way to register unhappiness with federal dictates without necessarily going full-bore and threatening secession. Further, it is a way to demonstrate, by direct example, that changes in policy are preferable to the way Washington demands.

Taking this view of nullification, I don’t necessarily disagree with Brad on the value of state’s, and their citizens, weighing in on what they believe to be a usurpation of Federal power. After all, this is something that has a long and noble history in America. When President John Adams persuaded Congress to pass The Alien and Sedition Acts, Thomas Jefferson, who at that point was serving as Adams’s Vice-President, and James Madison worked together to draft and ensure the passage of the Kentucky and Virginia Resolutions, which were resolutions passed by the state legislatures of Virginia and Kentucky to condemn laws which Adams’s opponents viewed as both unconstitutional and near-dictatorial.

The resolutions — which you can read here, here, and here — are interesting in themselves because they contain one of the first post-ratifications statements by American leaders of what they believe the Constitution to mean, as this excerpt from the Kentucky Resolution of 1798 shows wonderfully:

2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes, whatsoever; and it being true, as a general principle, and one of the amendments to the Constitution having also declared, that “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,”—therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States;’” as also the act passed by them on the 27th day of June, 1798, entitled “An Act to punish Frauds committed on the Bank of the United States,” (and all other their acts which assume to create, define, or punish crimes other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish, such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.

3. Resolved, That it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “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;” and that, no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the states, or the people; that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech, and of the press, may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use, should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgment, by the United States, of the freedom of religious principles and exercises, and retained to themselves the right of protecting the same, as this, stated by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference; and that, in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,” thereby guarding, in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch that whatever violated either throws down the sanctuary which covers the others,—and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That therefore the act of Congress of the United States, passed on the 14th of July, 1798, entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States,'” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.

That’s mighty strong language. Stronger, some would say, than the laws that a few states have passed since March challenging the Federal Government’s authority to require Americans to purchase health insurance. However, it’s worth noting what Madison and Jefferson were not doing, because as Madison acknowledged in his defense of the resolutions, there is no Constitutional authority granted to the states that would allow them to nullify a Federal law:

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

Considering that this was written by a man who was both one of the principle authors of the Constitution and one of the authors of the Resolutions, it seems to me that it is fairly persuasive evidence that, whatever else the Tenth Amendment might mean, the Founders never intended to give the individual states the power to nullify state laws.

So, basically, that leaves “nullification” (and personally I don’t like the word because of it’s historical associations with secessionists and segregationists) in the category that Brad would put it; a method by which the citizens can, through their state legislatures and the Courts if necessary, petition Congress for a redress of grievances.

However, when nullification is discussed today, it isn’t the “civil disobedience” variety that Brad favors that’s being advocated. In his new book, Nullification: How to Resist Federal Tyranny in the 21st Century Thomas Woods essentially argues for a full-throated right on the part of the states to ignore Federal laws if they choose to do so:

Nullification is Thomas Jefferson’s idea, articulated most clearly in his Kentucky Resolutions of 1798, that if the federal government passes a law that reaches beyond the powers delegated by the states, the states should refuse to enforce it. Jefferson believed that if the federal government is allowed to hold a monopoly on determining what its powers are, we have no right to be surprised when it keeps discovering new ones. If they violate the Constitution, we are “duty bound to resist,” to quote James Madison’s Virginia Resolutions of 1798.

Now this is a vast simplification of the argument that Woods makes, you can get a better idea of what he means in this interview:

I have yet to read Woods’ book, and still want to, but it’s fairly clear that his argument suffers from the fact that there just isn’t any historical support for his idea that the Constitution grants states the right to essentially break Federal law by ignoring it if they believe that it is unconstitutional. Any reliance on the Virginia and Kentucky Resolutions, for example, is easily rebutted by Madison’s own admission that the Resolutions were expressions of opinion rather than something that had the force of law.

History after the Resolutions doesn’t really provide any support for Woods’ argument either. The most notable example came during the Nullification Crisis of 1832, when South Carolina purported to declare a Federal import tariff unconstitutional and took steps to prevent Federal agents from collecting tariffs on goods entering through the Port of Charleston. Though the matter was resolved, it set the nation down a road toward secession that resulted in the bloodiest war in American history. After the Supreme Court’s decision in Brown v. Board of Education, ten Southern states used the doctrine of nullification, and the related concept of interposition, to attempt to resist efforts desegregate school and refuse to enforce the Court’s decision. In Cooper v. Aaron, the Supreme Court held that such efforts were unconstitutional:

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . .” Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a [358 U.S. 1, 19] power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . .” Sterling v. Constantin, 287 U.S. 378, 397 -398.

In other words, if nullification of the type Woods advances actually existed, we would no longer live in a Federal system, but in something more closely resembling the Articles of Confederation. Since the Constitution was written to replace the Articles, it’s clear that the Founders never intended to give the states the power to decide for themselves what the Constitution means and to randomly choose to ignore Federal laws based on that interpretation. Therefore, Woods’ nullification is little more than a professorial fantasy.

In closing, I don’t necessarily object to the kind of “civil disobedience” nullification that Brad favors. Let’s just not pretend it has the force of law.

Doug Mataconis
http://www.belowthebeltway.com

Point: Nullification Is The Civil Disobedience of Federalism

Constitution, Federalism, Point/Counterpoint, Separation Of Powers, Strategies For Advancing Liberty, The War on Drugs, Theory and Ideas

This post is a part of our continuing series Point/Counterpoint. I am taking the position that state Nullification of federal law is a legitimate action, and Doug Mataconis will respond tomorrow with a rebuttal. In memory of James Kilpatrick, we’ll dedicate this installment to him.

In federal politics, states are party to an uneasy compact with other states under the guise of a superior government.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

As such, they cede many powers to that national government, but one must think that they do not cede all of their own powers. Something must be held in reserve. The question is what? After all, this “Supremacy Clause” Constitution only grants supremacy to those laws made in pursuance of the Constitution itself — anything not permitted by the Constitution must not be considered to be Supreme. The real question, then, is who decides what is Constitutional?

Since 1803 and John Marshall, half of that question has been decided. The US Supreme Court is the arbiter of what is, and what is not, Constitutional. Further, a critical tool of state protection against the overreaches of the national government, the state appointment of Senators, was stricken in 1913 by the Seventeenth Amendment. Thus, the only legal method of appeal to Constitutionality available to the States is appeal to the Supreme Court, a body that hasn’t found many overreaches of national government since the New Deal.

Nullification, the doctrine that states can disregard federal laws, declaring them unconstitutional, is a provocation somewhere between fighting a battle at the Supreme Court level and secession.

Appeal to the Supreme Court is basic and need not be addressed here. Secession is a far more drastic measure, far more controversial, and an area where I believe Doug and I disagree, so it does require some treatment. Secession is often equated with violence, and treated as “violent revolution”, but I would say that most instances of violence were continued by the government trying to retain their subjects, not by those trying to withdraw. In the American Revolution, nothing that I’ve seen suggests that had the British peacefully withdrawn their troops, the colonists would have had any cause for continuation of violence. Even in the US Civil War, it is unlikely that, had the North allowed the South to secede, that the South would have ridden on Washington to impose slavery back upon the North. Secession is not overthrow of the government, it is withdrawal therefrom. Of course, Doug and I agree that, whether they had the right or not, the South’s secession was for morally unconscionable reasons — the continuance of the despicable practice of slavery. But the South’s secession was no different than the American Revolution in that they were NOT attempts to overthrow a government outside of the territories that wanted their freedom, they could have been peaceful separations. The breakup of the Soviet Union is a good example. While it was only peaceful because the Russians didn’t have the power to hold it together, it was a peaceful secession nonetheless.

So at this point we’ve sketched out two responses to potentially unconstitutional overreaches by a national government. The first is the relatively weak appeal to the Supreme Court — asking the government to self-regulate. This is a difficult option. A Senate prior to the Seventeenth Amendment might take seriously their “Advice and Consent” role in judicial nominations to only nominate those who would respect state sovereignty and Constitutional limits, but that ship has sailed. In its wake, it’s left a court with an expansive view of national government authority. Secession, on the other hand, is all-or-nothing. And while it may not be a violent act, history has shown that it often will be. As Doug pointed out in all three posts I read of his referencing secession, Jefferson in the Declaration of Independence said that taking to arms should not be done “for light and transient causes”.

Leaving only these two options is a fool’s game. Secession will only be legitimate in the face of absolutely unconscionably abuse, and appeal to the judiciary is impotent and unlikely to succeed [and further, the structure of the direct election of Senate and the Supreme Court nomination process makes it unlikely this will change]. If one wants to give the national government limitless power, asking only that it police itself, having only these two options is the roadmap…

…which is why we need nullification.

Nullification is the civil disobedience of Federalism. Is it legal? No. After all, the Supremacy Clause and judicial review see to that. But it wasn’t legal for Rosa Parks to sit at the front of the bus, or for black students to sit at a “Whites-only” counter at Woolworth’s. Sometimes, the law is a ass. Sometimes, you need to disobey to make a point.

I’ll give an example. Here in California, we have legalized marijuana for medical purposes. This is similar to how in the UK, people are allowed to use a white label CBD oil for this reason, provided the THC level is low enough. This is in DIRECT contradiction to the Controlled Substances Act, an act that empowered the regulation to be written that declares marijuana a Schedule I drug — with no medical use whatsoever. This is in contrast to those who end up buying 710 seeds and what they say about it. This is nullification in action. This is civil disobedience. California is not denying the Federal government’s power to enforce the drug laws — but it is denying its compliance with those laws and its assistance to the Feds in such power.

What will the result of this action be? Well, this (and potentially the follow-on Proposition 19) forces the people of California address the question of marijuana. Several states have followed on with their own medical marijuana laws. We now have a body of medical marijuana users which can be called upon to testify that marijuana does have medical use. Whether it is used as an ointment, or taken as private label softgels. We have families who have watched their loved ones, battling horrible diseases which sap their appetite, who have been able to eat enough to keep their strength. Hopefully the result of this action will be the government backing down and taking marijuana off Schedule I.

Viewed this way, nullification is less about disobedience as it is about changing policy. Nullification is a tactic in a wider strategy. It is a way to register unhappiness with federal dictates without necessarily going full-bore and threatening secession. Further, it is a way to demonstrate, by direct example, that changes in policy are preferable to the way Washington demands.

Undoubtedly, Doug will respond that nullification can be used for nefarious purposes, much like secession. I cannot disagree. Arizona is willing to prove that, as if there haven’t been enough historical examples already. Nullification is a tool, and it is the one who wields the tool who is important.

The national government appropriates power to itself, and it has built structures to weaken or remove legal impediments to that power. In response, we need illegal, but peaceful, impediments. Non-violent resistance carries with it a moral weight that legal Supreme Court wrangling never will, and that is a tool that we in the fight for liberty do NOT want to cede.

Nullification may not be legal, but it is legitimate.

Brad Warbiany
https://thelibertypapers.org/

Obama: Judge, Jury, and Executioner in Chief

Civil Liberties, Constitution, Crime and Punishment, Culture, Death Penalty, Democrats, Dumbasses and Authoritarians, Election '08, History, Hubris, Human Rights, Independents, Legal, Media, Military, Security, Separation Of Powers, The Bill Of Rights, War on Terror

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” – Amendment V of the U.S. Constitution

I don’t know how I missed this, but apparently the 5th Amendment was repealed a few months back with very little concern on the part of the media. Or maybe this was a big story back in February and I just wasn’t paying attention. I have been quite busy lately but I still don’t see how I missed this most disturbing power grab on the part of the Obama administration to date: the power for the president to order the assassination of American citizens without trial*.

If you missed this like I did and have read about this for the first time here, you may believe this sounds like some kooky black helicopter Soldier of Fortune conspiracy propaganda. When I heard about this the first time from Glenn Beck (of all people) on Judge Andrew Napolitano’s Freedom Watch, I thought it was probably another one of Beck’s over the top Obama boogey man theories. I thought surely if a president, even this president, were to do such a thing as order CIA snipers or perhaps Predator drones to take out an American citizen without trial, even the media on Left would be scandalized by such a policy.

As it turns out, Beck was right. When I entered the phrase “Obama can assassinate Americans” into a Google search, I did find at least one Left wing blog, Democracy Now! podcast hosted by Amy Goodman back in February explore this issue. And to Congressman Dennis Kucinich’s (D-OH) credit, he made an appearance on the podcast to explain why he isn’t giving President Obama a pass.

Kucinich:

Well, I think its incumbent upon the Attorney General to explain the basis in law for such a policy. Our Constitution’s Fifth Amendment, our Seventh Amendment, our Fourteenth Amendment all clearly provide legal protections for people who are accused or who would be sentenced after having been judged to be guilty. And what’s happened is that the Constitution is being vitiated here. The idea that people are—have—if their life is in jeopardy, legally have due process of law, is thrown out the window.

And, Amy, when you consider that there are people who are claiming there are many terrorist cells in the United States, it doesn’t take too much of a stretch to imagine that this policy could easily be transferred to citizens in this country. That doesn’t—that only compounds what I think is a slow and steady detachment from core constitutional principles. And once that happens, we have a country then that loses its memory and its soul, with respect to being disconnected from those core constitutional principles which are the basis of freedom in our society.

Not everyone on the Left is as willing to hold the Obama administration accountable though. Salon.com writer Glenn Greenwald (also a guest interviewed in the above podcast), one of the few columnists to give this policy the condemnation it deserves, wrote a very disturbing piece to remind those who were (rightly) critical of the Bush administration’s policies concerning extraordinary rendition, holding “enemy combatants” indefinitely without trial (including American citizens), warrantless wiretapping, and so on, should be at least as critical of Obama’s policy which goes even further.

Greenwald writes:

“Today, both The New York Times and The Washington Post confirm that the Obama White House has now expressly authorized the CIA to kill al-Alwaki no matter where he is found, no matter his distance from a battlefield. I wrote at length about the extreme dangers and lawlessness of allowing the Executive Branch the power to murder U.S. citizens far away from a battlefield (i.e., while they’re sleeping, at home, with their children, etc.) and with no due process of any kind.

[…]

And what about all the progressives who screamed for years about the Bush administration’s tyrannical treatment of Jose Padilla? Bush merely imprisoned Padilla for years without a trial. If that’s a vicious, tyrannical assault on the Constitution — and it was — what should they be saying about the Nobel Peace Prize winner’s assassination of American citizens without any due process?

[…]

When Obama was seeking the Democratic nomination, the Constitutional Law Scholar answered a questionnaire about executive power distributed by The Boston Globe’s Charlie Savage, and this was one of his answers:

5. Does the Constitution permit a president to detain US citizens without charges as unlawful enemy combatants?

[Obama]: No. I reject the Bush Administration’s claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.

So back then, Obama said the President lacks the power merely to detain U.S. citizens without charges. Now, as President, he claims the power to assassinate them without charges. Could even his hardest-core loyalists try to reconcile that with a straight face? As Spencer Ackerman documents today, not even John Yoo claimed that the President possessed the power Obama is claiming here.

Even though I did not vote for Obama in 2008 and was very critical of his policy positions at the time, I thought he would at least be an improvement in the area of civil liberties. I couldn’t have been more wrong. It seems that rather than rolling back these Bush era unconstitutional power grabs, Obama has grown accustomed to them and decided to take these powers to the next level: killing Americans he believes to be enemies of the state.

Perhaps there is room to debate whether or not foreign suspected terrorists deserve all the legal protections of our courts but the idea of killing American citizens without trial most certainly is not debatable. If our government does anything well its identifying individuals and putting them in prison and/or sentencing said individuals to death. This is done successfully every day in our criminal justice system. We need not worry that many actual terrorists will escape going through the criminal justice system provided that the prosecutors have a minimum standard of proof and a jury of average intelligence.

Even as badly broken as our criminal justice system is, this is our system. Ordering the killing of American citizens even in an “emergency” is not among the powers provided to the president under the Constitution (I just double checked) and is not a suitable substitute.
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Stephen Littau
http://fpffressminds.blogspot.com/
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