More On Civil Disobedience and Nullification

I have often alluded to civil disobedience and state nullification as preliminary remedies to federal usurpation, the ultimate remedies, of course, being that of secession and rebellion. And in these stubbornly uncertain times, I still find myself inexorably drawn to this subject's unsettling relevance. In truth, the importance of this subject can never be overstated and should never be ignored.

At a recent Monticello College-sponsored seminar, we were told that to restore constitutional order we must all actively participate in a "cultural transformation", meaning that the woes of American society fundamentally stemmed from a cultural--not political--breakdown; that a lack of personal virtue, faith in a higher power, and personal responsibility are the root causes of our social, economic and political malaise; that we must return to those core American principles which shaped who we once were as a people before the social engineers and neo-Marxists took over.

To achieve these transformative ends, the presenter made it clear that it was our individual responsibility to ensure that education--both home-schooling and public--should once again infuse our youth with the importance of free-market capitalism, personal and public virtue, personal responsibility, and "authentic ownership" of property versus ownership-by-credit; that an individual's passionate pursuit of a vocation vs a profession was much more productive and healthier for individuals, families and a free society than merely a dispassionate commitment to pursuing a lucrative career. It was explained that these virtues and values characterized those stellar men and women who founded our country in 1775 - 1787. And, of course, he made it clear that such a cultural transformation would not come easy and would require a substantial period of time and unremitting personal engagement to achieve.

Reflecting on his excellent commentary, my concern is that while we few can, indeed, plant the seeds of cultural rejuvenation--and we definitely should try--the smothering canopy of socialism which has so deeply perverted the very foundations of our once free and enlightened society will, despite our best efforts, prevent the timely germination of those seeds and culminate in our society's suicide. So, my more assertive solution is to better ensure a rejuvenated free society by both affirmatively thinning out and boldly cutting down that toxic canopy. But, again, I feel that a rational personal philosophical justification for this more assertive approach to restoring and defending traditional American values is needed.

So, here's how I see the succession of steps required to achieve constitutional order and cultural transformation: active political and judicial engagement to resist overreach, followed by civil disobedience, tenacious nullification, and, if necessary, secession.

Though mindful that civil disobedience is the essence of constitutionalism, absent which there is no effective recourse but armed resistance, it is also clear that for disobedience to be effectual the freely and openly disobedient individual must be willing to bear the burden of legal sanctions, e.g. incarceration. Without the willingness to accept punishment, one's reliance upon civil disobedience to right a wrong perpetrated by government or other offending entity is but a self-delusional contrivance.

As Martin Luther King, Jr. wrote from his Birmingham jail, "I submit that an individual who breaks the law that his conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law." And so it is.

Notable examples of successful civil disobedience are the civil rights movement and women's suffrage, among others, which effectively served to remedy unconstitutional or otherwise unconscionable action or inaction on the part of government.

In his "Resistance to Civil Government" (1849), Henry David Thoreau underscored the pre-eminence of the individual in a civil society with these statements: "A government in which the majority rule in all cases can not be based on justice; we should be men first and subjects afterward; there are nine hundred ninety-nine patrons of virtue to one virtuous man; a wise man will not leave the right to the mercy of chance, nor wish it to prevail through the majority; any man more right than his neighbors constitutes a majority of one; there will never really be a free and enlightened state until it comes to recognize the individual as a higher and independent power, from which all its own power and authority are derived, and treats him accordingly." Thus, he asserts the justification for civil disobedience when clear violations of the sanctity of the individual are perpetrated.

And since individuals are the essential elements of society, its culture, its communities and the states in which they dwell, it is not a big leap to rationally apply this truth to Americans and to the United States of America.

Regarding the American Civil War, aka War of Northern Aggression, though the southern States lost the war and, with the barrel of a Union gun to their heads, were compelled to accede to a forfeiture of their constitutional right to secede in the future, in truth they never really lost their inherent right to nullify or to secede. Why? Because, by definition, it is an inherent and unalienable right. (It may be instructive to note that as a condition of their ratifying the US Constitution in 1788, New York, Rhode Island and Virginia reserved their right to secede, a claim which was never questioned by the ratifiers at the Constitutional Convention. Surely, then, this inherent right cannot be logically denied to any state.)

As Sen. Henry Cabot Lodge writes, "It is safe to say there was not a man in the country, from Washington and Hamilton to Clinton and Mason, who did not regard the new system as an experiment from which each and every state had a right to peaceably withdraw."

And in a textbook at West Point before the Civil War, "A View of the Constitution", written by Judge William Rawle, it is stated that "the secession of a State depends on the will of the people of such a State." Thus, the persistent historical belief in the individual's and, by extension, the individual state's inherent right to decide their political fate.

In his "Democracy in America", Alexis de Toqueville observed that "The Constitution of the United States was formed by the free will of the States; these, by uniting, did not lose their nationality or become fused in one single nation. If today one of those same States wishes to withdraw its name to the contract [which created the union], it would be hard to prove that it could not do so."

And as history has clearly shown, it was only by sheer weight of overwhelming military force that this inherent contractual right was denied to the Confederate States of America. (Note: it is for me revealing that no Confederate leader was brought to trial for treason after the war. I suspect the reason for this is that since a trial would have forced a verdict on the constitutional legality of secession, federal prosecutors wisely opted to conveniently circumvent that issue altogether. No sense losing while you're ahead.)

Essentially, since secession is not explicitly addressed, nor is it specifically prohibited, in the US Constitution, this unifying document can, in fact, be accurately described as a "contract at will", and that, therefore, the unity of the States is solely dependent upon the mutual benefits derived by both the federal and state governments from that relationship.

In his "How to Resist Federal Tyranny in the 21st Century", Tom Woods states that "If you enter into a contract with somebody, never, ever would you say that the other party in the contract can exclusively interpret what it means...[when] the federal government has a monopoly on interpreting the Constitution ...they're going to interpret it in their own favor." This of course, applies to all branches of the federal government. In effect, like all contracts, both parties must have the inherent power to enforce the contract's provisions, failing which it ceases to be a contract but merely a means of asserting supremacy by one of the parties over the other.

Important to note is that Amendment IX declares that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people" and Amendment X states that "the powers not delegated to the United States are reserved to the states respectively or to the people." Thus, since the power to separate is not denied to them in the Constitution, it can be logically concluded that the States and the People have implicitly retained the inherent right to separate. And since the federal government, which is inclusive of the Congress, the Executive and the Judiciary, is a party to the contract with the States, if the federal government were to overstep its Constitutional authority by exercising powers not specifically granted to it how else could unconstitutional federal acts be thwarted if not by nullification or secession? Without the means of escaping a broken contract, it would have to be assumed that the States and/or the People would be inherently willing to succumb to any manner of federal overreach or tyranny. But since no reasonable person would think such was the framers' intention, nor do I believe a free people would be so readily inclined to tolerate such servility, I think it fair to say that nullification and, indeed, secession, are the reserved constitutional rights of the states and of the people.

Of course, short of secession, nullification, a well-grounded and peaceful Constitutional remedy, is the states' most efficacious and least disquieting defense against federal encroachment. We see this today in the number of states which have effectively nullified Obamacare, firearms regulation and other federal usurpations which have violated the people's trust and exceeded constitutional restraints on the federal government. And, of course, whether or not nullification is effective depends upon the tenaciousness of the the nullifying state(s). And if offended states routinely and obsequiously allow any of the branches of the federal government to overreach their constitutional authority, then nullification is but an empty theory.

However, as Thomas Jefferson said, "there is a rightful remedy to the federal government's uncontrollable quest for power. It's called nullification." So, while it's much more than theory, only the will of the states and the people can make it so. Nullification means invalidating and rendering null and void any executive edict, legislative mandate or judicial fiat emanating from DC which violates the constitutional contract between the states and the federal government. (Carefully note here that nullification should never be restricted just to legislative or executive overreach, but to judicial overreach as well.)

Without an effective balance of power between the states and the federal government as contracting parties, the framers fully understood that discord and disunity would be inevitable. Thus, Section 8 of the Constitution (enumeration of federal powers) and the Bill of Rights (the first ten amendments) were intended by the states to clearly delineate respective powers in the contract, thereby striking that harmonious balance which would preclude disorder and disunion.

In the 18th century, Nathaniel Ames of Massachusetts observed, "The state governments represent the wishes and feelings of the people. They are the safeguards and ornament of our liberties--they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights." Well, that was the idea anyway. Unfortunately, passage of the 17th Amendment seriously impaired the ability of states to check federal power. Effectively eliminating the framers' mechanism for ensuring the states' direct representation and influence in the Senate, for all intent and purposes the US of A, that well-crafted constitutional republic it was originally designed to be, was suddenly and unceremoniously transformed into an unwieldy representative democracy and the balance of power has, since then, dramatically shifted to the federal government. Repealing this ill-conceived amendment should be a top priority of the states.

And no discussion about nullification can ignore the "supremacy clause" (Art VI), the latter which is so relentlessly and mindlessly touted by modern liberal adherents who mistakenly believe that it constitutionally negates all state authority and any inherent state right to nullify or secede. Incredibly, what nullification detractors continue to conveniently and dishonestly ignore is the actual wording of the clause: "This Constitution, and the laws which shall be made in pursuance thereof...shall be the supreme law of the land." The clause in no way, shape or form unilaterally grants supremacy to the federal government in all matters of law, but only those laws enacted which fully comport with its enumerated powers. For all practical purposes, therefore, the states too, as parties to the constitutional contract, enjoy supremacy in their sphere of authority. Thus, in all cases it is within the implicit and expressed power of the states to determine whether or not a federal action is constitutional.

Finally, I have to say that every time I delve into this compelling subject I am further convinced that civil disobedience, nullification and secession are absolute rights which no power on earth can rightfully deny us. And drawing upon the best minds in our history, my conclusion is inescapable: the only effectual means of ushering in a cultural rennaissance in America and of restoring constitutional order is by enough Americans becoming actively engaged in changing the system from within, failing which we must be unyielding in our resistance to cultural and political stagnation even if it means nullification or even secession.

With nearly 46% of the electorate either functionally illiterate or simply brainwashed, our work is cut out for us. Going forward, there can be no compromising on constitutional principles with the Executive, the Congress and most certainly not with an increasingly renegade federal judiciary and bureaucracy upon which Progressives have so successfully relied to undermine the Republic. And with a GOP establishment habitually inclined to compromise the party's conservative principles, the challenge is all the greater.

To prevail and to reverse our society's headlong and irretrievable collapse into the quagmire of socialist tyranny, we must be fearlesssly tenacious, assertive and true to ourselves and to the Constitution of the United States. Nothing else will work.

"Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselve into a state of war with the people, who are thereupon absolved from any further obedience." John Locke, 1690

"A patriot must always be ready to defend his country against his government." Edward Abbey

"If you will not fight for the right when you can easily win without bloodshed; if you will not fight when your victory will be sure and not too costly; you may come to the moment when you will have to fight with all the odds against you and only a precarious chance of survival. There may even be a worse case. You may have to fight when there is no hope of victory, because it is better to perish than to live as slaves." Winston Churchill

"The preservation of the sacred fire of liberty and the destiny of the republican model of government are justly considered as deeply, perhaps as finally, staked on the experiment entrusted to the hands of the American people." George Washington, 1789

"Whenever the people are well-informed, they can be trusted with their own government; whenever things get so far wrong as to attract their notice, they may be relied on to set them to rights." Thomas Jefferson, 1789

"We are now trusting to those who are against us in position and principle, to fashion to their own from the minds and affections of our youth...This canker is eating on the vitals of our existence, and if not arrested at once, will be beyond remedy." Thomas Jefferson, 1821

Paladino Less a Risk Than Cuomo

Editorial published 10/12/10 in the Democrat & Chronicle

Though Carl Paladino is decidedly rough around the edges, for many New Yorkers fed up with onerous taxes, runaway deficit-spending and strangulating government-by-lobbyists, the prospect of a more efficient, limited and less costly government in Albany renders Paladino an electoral risk well worth taking.

Sure, Cuomo II is more polished, but he is also a consummate insider, another entitled establishment type who will change little but the name plate on the governor's desk. No thanks. We've been there, done that, and it doesn't work.

So why not elect a successful, common-sense businessman who is solely focused on reducing spending, cutting taxes and restoring the Empire State's financial stability and economic vitality?

For if we again mindlessly replace a career politician with yet another career politician, we surely risk losing many more tax paying New Yorkers to other states, further eroding our legislative clout in D.C. and ensuring our economic decline.

So, let's ditch the ideological blinders and try getting it right this time.

Lifting Drilling Moratorium Another Ruse

Without getting past this morning's headline about the drilling moratorium's being lifted, I immediately understood that obtaining drilling permits would surely serve to delay actual drilling starts. And, sure enough, that was the story behind the story.

This Administration absolutely believes Americans are unredeemably stupid, mindless pawns to be used for their entertainment and political self-interests.

Step by odious step, Obamunism is reducing our nation to a third world banana republic. That has ALWAYS been Barack's and his Progressive minion's ideological goal in Congress, in the courts and within his ever-burgeoning and loyal government bureaucracy.

The mind-numbing tragedy is that nearly 45% of the electorate still remains either blithely ignorant or deliberately unwilling to see this clear and present danger. Why? Because so many of his supporters within and without the government are either dyed-in-the-wool socialists and elitists or me-first entitlement types. And these groups are, indeed, hard nuts to crack. But crack them we must!

I pray the nation can survive the next two years and the Progressives' likely ideologically driven legislative blitzkrieg following the midterm elections this year. So much to block, to repair and to undo, and I'm no longer confident we can successfully pull that off. By 2012, the Progressives, like the loathesome ideological lemmings they are, will have willingly self-destructed leaving in their wake incalculable economic wreckage and ruinous political discord.

Very disheartening and truly alarming.

And I am not convinced the Republicans, tainted by years of appeasement, accommodation and big government policies of their own, are up to the task of repairing the awful damage either. Not unlike the Progressives, too many GOPers are enamored of power and only tenuously committed to restoring constitutional order. And therein lies the real problem for our Republic.
Whom can we trust?

If our constitutional republic cannot survive with the current crop of politicians, then perhaps we should honestly stop deluding ourselves and simply "dissolve the political bands" which have connected us as a people. And along with countless other millions, I'm not kidding about this at all!

As a nation, we should remain indivisible only insofar as that unity upholds constitutional order. Indivisibly socialist would be intolerably un-American. Thus, if it becomes a clear choice between socialist servitude or republicanism, for most American patriots the choice would be glaringly obvious. And if secession is unavoidable in order to safeguard that sacred constitutional order, then so be it. Who's to stop it?

Of course, let's hope we don't reach such a breaking point. But, in truth, hasn't the unravelling already begun?

Unlike anything we've since prior to the Civil War, around the country nullification is in full swing and states are beginning to understand that an overweaning and excessively intrusive national government has become a menace to our way of life. My bet is that many States will no longer routinely defer to WH executive orders, legislative overreach and arbitrary black-robed judicial dicta which continue to undermine the people's political and economic interests. I also predict that states will soon begin--in earnest--to resist federal encroachments at every turn, thus reversing the country's inexorable slide into socialist tyranny. Unquestionably, it is only this sort of determined state-level resistance which offers any genuine hope of redeeming the republican union and preventing its ultimate dissolution.

"The spirit of resistance to government is so valuable on certain occasions, that I wish it to be always kept alive." Thomas Jefferson (1787)

"Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience." John Locke (1690)

"If there were a separation...," T. Jefferson wrote, "God bless them both and keep them in the union if it be for their good, but separate them if it be better."

"Pledge to America": A Beginning

I carefully read the Pledge today and am buoyed by its sincerity and clarity of purpose. And, frankly, I believe our founders would be reassured as well.

Though much is missing, e.g. term limits, tax code reform, English only, reducing the corporate tax rate, and reforming Social Security, there is still much to commend in the document.

Relying on those rock-solid founding principles which made America the exceptional economic and political power we all want it to be once again, the Pledge appears to be a commonsense and unabashed expression of an at-once chastened and reinvigorated GOP intent upon returning America to its constitutional principles and traditional American values. (Thank you, Tea Baggers one and all!)

Understandably short on specifics as to how their goals will actually be achieved, it does provide direction and clearly defined ending points. It will, of course, be the day-to-day strategy huddle of the players themselves on the field of political battle which will necessarily determine how the GOP will get us there. For me, therefore, until the battle is joined there’s really no need tipping off Progressives as to the GOPs specific tactics to achieve the Pledge’s goals. Just achieve them!

Despite Red State’s Eric Erickson who was so quick to denigrate what he apparently saw as the banality of the document, the Pledge didn’t strike me as a hollow, self-serving contrivance merely to get GOP candidates elected or re-elected. In any case, I’m all for the Pledge and ANY candidate who honestly and demonstrably espouses the Pledge.

The highlights of the Pledge which were of special interest to me were as follows:

1.impose a net hiring freeze on non-security federal employees
2.cancel TARP
3.reform Freddie Mae and Freddie Mac (a long-term project)
4.repeal and replace Obamacare (repeal, of course, can’t happen
until we have a Republican President; however, reforming and withholding
funding to hamstring implementation of Obamacare is a must)
5.require congressional approval of any new federal regulation
which contributes to the deficit or destroys jobs
6.require that every bill contain a citation of Constitutional authority(Finally, HR 450, the Enumerated Powers Act, has been adopted)
7.fully fund missile defense, enforce sanctions against Iran, keep
terrorist combatants in Guantanamo, and try foreign terrorists in military
courts
8.prevent elimination of Bush tax cuts and the resulting $3.8 trillion tax
hike in 2011
9.revive free enterprise by ending uncertainty in the business sector
10.end the burdensome 1099 reporting mandate
11.cancel unspent “stimulus” funds
12.eliminate ineffective or unnecessary federal programs
13.legislation should be understood by all interested parties before
being voted on; at least 3 days to read the bill; advance major legislation
one issue at a time—no packaging
14.establish unencumbered operational control over our borders; reaffirm
authority of states and local law enforcement to assist
15.restore transparency and accountability in Congress and throughout gov’t
16.increase access to domestic energy sources and oppose cap-and-trade
17.stop “card check”
18.cap deficit spending

Though it's up to each of us to make sure the GOP follows through, this is a laudable and do-able start, a blueprint to jumpstart restoration of a truly representative and responsible limited government. Am I necessarily cynical? Yup. But, am I reasonably hopeful? Yup. But, again, ultimately it's up to "we the people" to make sure it all happens.

In truth, this is probably our nation’s last chance to restore the luster of a republic whose century-long downward spiral into the bowels of socialism and authoritarianism has gone essentially unchecked. So, our work is yet undone.

So, let’s get behind this Pledge and hold our representatives’ feet to the fire at every critical step to ensure that the Pledge's short-term and long-term goals are achieved, failing which it really is over, folks. No drifting back to complacency and the GOP default position of accommodating the Progressives merely to get elected. For if that course is pursued, left before us will be but the bleak and unavoidable prospect of either secession and the disintegration of the union, or our uniform acceptance of servitude. And given those stark choices, I suspect most Americans will opt for secession.

We should all be mindful that our nation is “indivisible” only insofar as it uniformly embraces and advances its founding principles and strives for constitutional order. Nothing less should ever be tolerated by any American citizen. And to ensure these ends, we must continue to expect a lot of ourselves and much, much more character, courage and integrity in our representatives.

Let's get it done!

Afghanistan Policy: "Win" or Contain?

Isn't it time we started thinking outside the box?

We all know that in modern times Afghanistan has never been successfully defeated or occupied by a foreign military force. To wit, the Brits took it on the chin in 1842 and the Russians were very badly bloodied when they attempted a similar feat nearly a century and a half later.

With the infusion of thousands of American peacemakers and a motley throng of essentially tepid NATO “allies” into Afghanistan, all of whom are committed to nation-building as well as to military victory over the Taliban, it would appear that the Hindu Kush failures which inflicted the Brits and Russians in the past may have found new victims in the 21st century.

So, I have to wonder if the war as we are now waging it is worth all the blood and treasure? More to the point, how best can we achieve our legitimate goals there?

Normally a stalwart and reliable supporter of allied intervention in Afghanistan, even Britain’s prestigious International Institute for Strategic Studies is now calling for a) the withdrawal of British troops, b) shifting allied emphasis to that of targeting Al Qaeda (AQ) and its allies, and c) abandoning the elusive and probably unachievable goal of creating a viable Afghan state. Not an encouraging signal to those among us who seek “victory”, that being understood as the creation of a functional and survivable centralized authority in Kabul, a historical incongruency if ever there was one.

Then there’s the bi-partisan Afghanistan Study Group (ASG) of academics, business executives, former government officials, policy wonks and the obligatory journalists which has discussed policy options for the Obama Administration for the past year. Mindful of Henry Kissinger’s admonition that “Afghanistan has never been pacified by foreign forces”, the ASG offered up, among others, the following observations and recommendations:

1.Even with a reduced American/allied presence, a Taliban takeover is now unlikely.
2.Smarting from their painful experience with AQ, a resurgent Taliban is very unlikely to again provide AQ “safe haven”.
3.A reduced allied military footprint would seriously hamper Taliban recruitment.
4.Hiding primarily in the northwest frontier, there are no more than 300 AQ operatives in Afghanistan who can be effectively engaged and neutralized by American special forces in theater. Thus, if eradicating AQ is the underlying objective, it can be accomplished with significantly fewer military assets and at considerably less cost.
5.Because Afghanistan has historically been fragmented and decentralized, pursuing a process of decentralization, power-sharing and political inclusion among principal Afghan parties is a more sensible course of action.
6.Since poverty can act as an incubator for terrorism, an intensive and on-going international effort to develop Afghanistan’s economy should be pursued.
7.Work toward Afghanistan’s neutrality and stability by diplomatically engaging regional and global stakeholders whose naturally competing national interests, e.g. Iran, India, Pakistan, China, will better serve to prevent Afghanistan’s being dominated by any single power, thus preventing Kabul’s exporting instability.
8.By being disproportionately focused on Afghanistan, America’s precious national assets have been diverted from its larger global security concerns like N. Korea, Iran, China and the Russian periphery (Georgia). This potentially costly and dangerous diversion of resources could easily lead to miscalculations and avoidable conflicts with which America, its deterrence capability currently diminished, is not as well prepared to deal.

Looking over the past nine years since the 9/11 terrorist attack on our homeland, one is immediately struck by the understandably enormous diversion of national assets to both prevent another devastating attack on the homeland as well as to effectively deter and root out terrorists worldwide. But if our justification for a significant diversion of resources to wage war in Afghanistan is to prevent AQ’s using Afghanistan as a platform to launch more attacks on the American heartland, that rationalization seems to have become increasingly hollow.

To wit, AQ’s offensive capability has been effectively crippled by our relentless worldwide anti-terrorist regime which, of course, ought to continue. Clearly, however, any future terrorist attacks can now be carried out by either remnants of AQ itself or by their allied organizations in Yemen or Somalia. Thus, the faulty rationale for our dedication of inordinately costly military and economic assets in Afghanistan.

And as George Friedman of Real Clear World recently and incisively posited, “9/11…cannot be permitted to define the totality of national strategy; terrorist attacks will occur [but] the world’s only global power cannot be captive to this single threat; the United States should have a global view and support a balance-of-power strategy [in the subcontinent and worldwide].”

In effect, Mr. Freidman is saying that since preventing terrorist attacks which cannot by their very nature be entirely prevented despite every conceivable counter measure, that, therefore, fighting terrorism should not be, as it has become, the centerpiece of American foreign policy.

He goes on to point out that taking ruthless advantage of the Islamic world’s internal rivalries should be a central component of our nation’s balance-of-power strategy to suppress the threat of Islamic militancy. To my ears, these thoughtful words ring acutely sensible.

The threats to peace posed by a resurgent China, an expansionist Russia, a destabilizing Venezuela, and a nuclear armed Iran and N. Korea are every bit as threatening—if not more so--to our national security as are any looming terrorist threats. Thus, perhaps a more rational and balanced blueprint going forward should, in fact, entail a carefully crafted, steady and measurable drawdown of American forces in Afghanistan, an uptick in sustained international economic development assistance there, and the deft application of a time-honored balance-of-power strategy involving our expediently playing off one regional power against another in order to safeguard Afghanistan’s stability, and, by extension, Pakistan’s decidedly vulnerable nuclear arsenal as well.

Of course, the goal of this strategy would be to achieve stability in Afghanistan, thereby allowing a diversion of precious American military and economic assets to more effectively deter potential opponents and conflicts around the world.

In short, our core national interests, and not our narrow focus on managing the terrorist threat alone, should necessarily dictate America’s foreign policy in the years to come. I believe that our acting on this cogent approach would prove to be a thoroughly and refreshingly America-first exercise in hard core realpolitik.

But is our liberal-dominated and insufferably self-absorbed Administration who is more interested in protection on the cheap and ill-conceived exit strategies capable of adopting such a sophisticated, mature and pragmatic Machiavellian approach in its foreign policy? I very seriously doubt it. Parochial domestic interests and shortsighted ideology vs clear-headed pragmatism and common sense seem destined to forever shape Obama’s courses of action at every level and in every sphere. So, it looks like it is now left to the next Commander-in-Chief to get us on the road to a more rational containment approach in Afghanistan. And with that end in mind, we can’t get to 2012 soon enough.

Honor Rally Heralds Return to America's Constitutional Roots

As anticipated, to denigrate and marginalize the Tea Party Movement and the Restoring Honor Rally on 8/28, in characteristically unscrupulous form many on the rattled left have launched a cascade of venomous racist epithets against Tea Baggers, Glenn Beck and all other conservative Americans--leaders and grassroots types alike--who have dared challenge the insufferable elitism and alien progressivism which now dominates the once venerable Democratic Party.

Like many other Rochesterians, I too attended the rally in DC on the 28th and was genuinely inspired by the propriety, patriotism and rectitude of the half-million grassroots Americans--men, women, children, veterans, and their families--who peacefully demonstrated their sincere and proud commitment to restoring constitutional order, free enterprise, our founding principles and honor to America.

A Second American Revolution? Absolutely no question about it.

I came away with this certainty in mind: awakened to the domestic political threats arrayed against us, a resurgent "we the people" WILL restore constitutional order. In time, cancerous alien ideologies like Socialism and Marxism, aka Progressivism, will soon have no home, much less a beachhead, in these United States.

Frankly, I've never felt more hopeful. But, the struggle is not yet over. We must keep our eyes on the ball and our noses to the grindstone. More dispiriting challenges await us, so don't go along to get along, don't surrender, and keep moving forward.

Birthright Citizenship: Politics vs Rule of Law

We’ve all heard the stats: currently, only the United States grants birthright citizenship to illegal aliens and 8% of babies born in the US are so-called “anchor babies” born of illegal aliens. In and of itself, this doesn’t constitute a crisis, but, for many of us, it does illustrate how far we’ve strayed from the Constitution.

Like all babies, “anchor babies” too are sweet and cuddly, and deserving of mother’s love and society’s protection. But automatically conferring citizenship on babies of illegal aliens is an ideologically-motivated perversion not only of internationally accepted legal norms, but, much more importantly, of both the Constitution and the 14th Amendment as well.

By nimbly mischaracterizing the motives of birthright citizenship opponents, many in the media and blogosphere—to include attorneys who should know better-- have irresponsibly misrepresented the framers’ intent and have reduced the level of discourse on this legitimate constitutional issue to that of ad hominem, race-baiting, specious legal citations, contrived legal justifications, and mindless pandering. Shamelessly seeking ideological and political supremacy, to these people the Constitution and the rule of law mean absolutely nothing. And for a nation which once prided itself as being a “nation of laws”, that is inexcusable.

During an interview with Mr. Trump last night, what annoyed me greatly was Bill O'Reilly's characteristically bombastic--and wholly erroneous--claim that "the 14th Amendment says that any person born on US soil is a US Citizen. Period".  Poppycock! He couldn't have read the amendment at all to reach this specious conclusion. And the fact that even Judge Napolitano, a Libertarian jurist, a few days earlier asserted this revisionist and ignorant view is nothing short of bewildering and scary.  But, this does underscore just how flawed and fallible jurists and seemingly bright, well-informed talking heads can really be.

That said, for my own edification I decided to take the time to again review the actual words of the 14th’s framers, pertinent case law and the opinions of jurists and legal scholars on both sides of the question to determine the truth in this matter.

Here are my findings and conclusions:

First, while researching pertinent materials, I soon discovered that understanding the clear intent and meaning of the 14th Amendment was much simpler than anticipated. In fact, the meaning of the 14th was surprisingly straightforward. Lesson learned: if one simply abandons one’s ideological blinders for a moment and commit to an honest effort to objectively review a constitutional issue, clarity is nearly always one’s reward.

It also became apparent that from a strictly Constitutional standpoint, and despite Lindsey Graham’s initial assertion that a constitutional amendment is needed to outlaw anchor babies, aka birthright (jus soli) citizenship, I was unable to find convincing constitutional evidence that so-called anchor babies can legitimately and automatically acquire U.S citizenship. Thus, a simple act of congress--and most certainly NOT an amendment to the Constitution—in order to clarify the original intent and meaning of the 14th Amendment is all that is really needed.

To wit, introduced on April 2nd, 2009, and co-sponsored by 93 congressmen, inclusive of one lonely Democratic supporter, Mississippi’s Gene Taylor, HR 1868 (Birthright Citizenship Act of 2009) amends section 301 of the Immigration & Nationality Act to provide that a person born in the US is “subject to the jurisdiction” of the US for citizenship purposes if the person is born in the US of parents, one of whom is: 1) a US citizen or national; 2) a lawful permanent resident alien who resides in the US; or 3) an alien performing military service in the US Armed Forces.” And if one simply reviews the original meaning of the 14th Amendment one can easily see that there is absolutely nothing at all revolutionary about this bill's language. In any event, the bill failed.

Intended to protect the rights of emancipated Negroes, the 14th Amendment specifically provided that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”

And as I very quickly learned, of central importance in this statement is the phrase “subject to the jurisdiction thereof”, something birthright citizenship proponents have consistently and very conveniently ignored.

To begin, Sen. Jacob Howard of Michigan, co-author of the 14th Amendment, expressly asserted that “this will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” And it is in this plain-spoken construction birthright proponents somehow discover ambiguity or a totally different meaning. Amazing!
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Under Section 1992 of the US Revised Statutes, the same Congress which adopted the 14th Amendment confirmed that “all persons born in the United States who are not aliens, excluding Indians not taxed, are declared to be citizens of the United States.”

In 1873, the US Atty Gen ruled the word “jurisdiction” under the Fourteenth Amendment to mean “the absolute and complete jurisdiction. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the US but only to a limited extent. Political and military rights do not pertain to them.”

Sen. Trumbell noted during the drafting of the 14th Amendment that it was the amendment’s goal to “make citizens of everybody born in the US who owe allegiance to the US,” and if “the negro or white man belonged to a foreign government he would not be a citizen.”


On March 1, 1866, Rep. James Wilson of Iowa, House Judiciary Committee, added that “we must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to conclude that every person born in the US is a natural-born citizen of such States, except that of children born on our soil (jus soli) to temporary sojourners or representatives of foreign governments.” This statement served to nicely clarify Sen. Howard’s construction above.

John Bingham, framer of the 14th Amendment’s first section, stated that Sec. 1992 of the Revised Statutes meant “every human being born within the jurisdiction of the US of parents not owing allegiance to any foreign sovereignty is, in the language of the Constitution itself, a natural born citizen.”

And if we reach way back to our founders in search of a definition of citizens of a foreign power, Thomas Jefferson said “Aliens are the subjects of a foreign power.”

To a man, among the framers the premise behind “within the jurisdiction thereof” was that all children born to parents who owed no foreign allegiance were to be citizens of the US; thus, not only must a child be born on US soil (jus soli) but born of parents whose complete allegiance was to the US.

Subsequently, Sen. Howard further explained that “only thru expatriation, which could be accomplished thru law alone, and not thru any immigrant acting on his own outside the law—and certainly not by any act of birth alone—could an alien become a citizen.” This, of course, would mean that the alien/sojourner would need to affirmatively renounce his allegiance to his/her country of origin before s/he could be considered completely within the jurisdiction of the US.

Sen. Howard also stated the following: “…the word 'jurisdiction', as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the US, coextensive in all respects with the constitutional power of the US, whether exercised by Congress, the executive, or the judiciary; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the US now.” In effect, he was saying that an alien may, by treaty arrangements with his country of origin, avail himself of the protection of the US, much as sojourning US citizens in the alien’s country of origin would avail themselves of that country’s protection, but that an alien's physical presence in the US would not render him/her under the "complete jurisdiction" of the US. Simple enough.

The rationale behind not granting automatic citizenship is based upon the fact that Indians could not be subject to the jurisdiction of the US because the US dealt with them through treaties. By logical extension, aliens sojourning in the US are extended privileges and protections by virtue of treaties in force with their countries of origin, much as American citizens are granted similar rights and privileges—but not citizenship--when sojourning in those countries. Logically, therefore, only if an alien voluntarily and affirmatively renounces his citizenship and expresses an intent to swear allegiance to the US may the alien, through operation of law (a formal naturalization process) be granted US citizenship. Thus, in a nutshell, since neither children of tourists/sojourners nor of diplomats born in the US can be US citizens, children of illegal entrants cannot be lawfully granted that privilege of US citizenship?

In 1867, George Yeaman, American Minister to Denmark, in his highly respected treatise on allegiance and citizenship and for whom the framers had great respect, asserted that “the idea of a double allegiance and citizenship united in the same person, and having reference to two separate, independent, and sovereign nations or governments, is simply an impossibility.” Thus, dual citizenship was also a no-no. (Take note, BHO.)

To wit, P. A. Madison, a modern day master of constitutional analysis, points out that “since illegal aliens are unlawfully in the US, their native country has a proper and primary claim of allegiance on the child. Thus, the completeness of their allegiance to the US is impaired, which therefore precludes automatic citizenship.” Slam dunk obvious, I’d say.

Also, Rep. Aaron Sargent, a representative from California during the Naturalization Act of 1870 debates, said the 14th Amendment’s citizenship clause was not a de-facto right for aliens to obtain citizenship. Significantly, none of his contemporaries disputed that assertion.

Adding to this mix, here is a little case law since the 14th’s ratification.

In the Slaughterhouse Cases(1873), the Supreme Court observed that the 14th Amendment overturned the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction, citizens of the US; the ruling went on to point out “that [the 14th Amendment’s] main purpose was to establish the citizenship of the Negro” and that “the phrase ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, AND citizens or subjects of foreign states born within the United States", thus reinforcing Sen. Howard’s construction above. So, since they cannot be subject to US jurisdiction, children of citizens of foreign sovereignities and children of foreign ministers/consuls/ambassadors cannot be lawfully considered US Citizens. Makes perfect sense.

Then, in Elk v Wilkins (1884), the Supreme Court ruled that the 14th Amendment did not even confer citizenship on Indians—because they were subject to tribal jurisdiction, not U.S. jurisdiction. In effect, the court essentially stated that the status of the parents determines the citizenship of the child, and not merely the fortuitous birth of that child on American soil. (Note: not until the Citizens Act of 1924 was U S citizenship granted to American Indians. As with many whimsical court rulings over the years, I was unable to understand the legal grounding for this reversal. Thus, it would seem that judicial arbitrariness is not an affliction peculiar to modern day American courts alone.)

In US v Wong Kim Ark (1889), the courts held that children born in the US of parents of foreign descent who, at the time of the child’s birth are subjects of a foreign power but who have a permanent domicile and residence in the US and are carrying on business in the US, and are not employed in any diplomatic or official capacity under a foreign power, and are not members of foreign forces in hostile occupation of US territory, become a citizen of the US at the time of birth. As expressed in the minority opinion, this decision violated the 14th Amendment. But, in any case, how many new illegal aliens have permanent domiciles in the US and how many of them are carrying on business in the US at the moment of their child's birth on US soil? I suspect precious few. But note that in this case the parents were, unlike illegal entrants, legally present.

In Steel v Citizens for a Better Environment (1998), the court stated that “jurisdiction is a word of many, too many, meanings.” However, and as can be clearly seen above, Sen. Trumbell and, yes, Sen. Howard, 14th Amendment co-authors, had long ago provided a definition by declaring that “the provision is, that all persons born in the United States, and ‘subject to the jurisdiction thereof’’, are citizens. That means ‘subject to the complete jurisdiction thereof. What do we mean by ‘complete jurisdiction thereof'? Not owing allegiance to anybody else. That is what it means.” And this from the framers' themselves! (Clearly, majority jurists in the Steel v Citizens court didn’t bother to research the framers’ clear intent and meaning. And one must wonder if a neophyte, such as I, can easily deduce original meaning, why can't trained jurists? Could it be incompetence or do political agendas get in the way of constitutional law?)

Despite the clear meaning and intent of the 14th's framers, we fast forward to the somewhat enigmatic ruling in US ex rel. Hintopoulis v Shaughnessy (1982), which some bloggers have used to justify birthright citizenship. In that case, and out of whole cloth, somewhere in the ruling it asserted, almost in passing, that although a child born in the US to two illegal aliens was a US Citizen (????) that, nonetheless, “suspending the alien parents’ deportation based upon “the accident of birth in the US of their son would be to deprive others, who are patiently awaiting visas…” Thus, since the passing allusion to the legality of birthright citizenship, though gratuitous—and erroneous—was woven into this suspension of deportation decision, birthright proponents often blithely and excitedly cite this case to substantiate the legality of birthright citizenship. Grabbing at straws, I'd say.

Then, true to activist form, in Plyler v Doe (1982) the court, apparently without access to the 14th framers’ erudition and written words, mysteriously ruled 5-4 that there is “no plausible distinction” with respect to “jurisdiction” between resident aliens who entered the country lawfully and those resident aliens who entered unlawfully. Wowee! Clearly a yawning divergence from the framers’ clear meaning and intent. Seems judicial activism was as alive and well in 1982 as it is today.

To me, these two rulings which capriciously and arrogantly turned Thomas Jefferson and the framers of the 14th on their heads are clearly unlawful at worst, convenient contrivances at best.

When I explained all this on-line to an attorney who is also a strong proponent of birthright citizenship, this was her reply: “I disagree with your interpretation of the phrase ‘subject to the jurisdiction thereof'. The first rule of statutory construction is that we don’t look to the drafters’ intent if the words are plain and unambiguous…If the drafters meant to include some allegiance test, they would have. They didn’t.” That sort of revisionism, gobbledegook, willful ignorance and dishonesty is, folks, what this country is up against. My rejoinder was civil, but to the point: “It wasn’t MY lowly interpretation. It was the framers’ interpretation. But, ignore original intent and meaning? A living constitution is like having no constitution at all. We can merely make it up as we go along and continue to hand-off an increasingly irrelevant document to the next generation. While I sincerely hope this isn’t what you have in mind, at this juncture I can see there’s really nothing more to discuss with you on this or any other constitutional issues. How very sad.”

Finally, based upon what I now understand, we must be faithful to the 14th Amendment framers’ clear intent and meaning—surely a tall order with so many activists and social engineers infesting our courts these days. In the case of "birthright citizenship", Congress is constitutionally empowered to re-assert the original meaning of the the 14th Amendment, and that's precisely what it should do.