Civil Obedience

[paulhager]

I’ve been talking for some months about the idea stated in the thread title. I haven’t posted anything on my blog addressing it. This seems like the ideal venue to open it up for discussion. Let me sketch out the basic argument.
1. As we know, the Constitution delegates a limited set of powers to the Federal Government. Those powers are, to quote Madison, “…few and defined.” There is no enumerated power to regulate firearms outside of the militia clauses, which allow Congress to “…provide for…arming…” the militia. (In a 1998 8th District Congressional debate - I was the Libertarian Candidate - I pointed out that, based upon the militia clauses, Congress could potentially require that citizens keep an M-16, making that the only legal form of Federal “gun control”.)
2. Lest the Federal Government in the exercise of the enumerated powers contrive to restrict or cripple the ability of individual states to arm and equip their “well regulated” militias, the people – the unorganized militia – were guaranteed that their rights to keep and bear militia weapons would not be violated by the Federal Government.
3. The highest law of the land is the U.S. Constitution.
4. Article VI, clause 3, requires that, in addition to the President (in Article II), all members of Congress, and all other Executive and Judicial officials must, by oath or affirmation, pledge to support the U.S. Constitution. In addition, EVERY STATE official – executive, legislative, and judicial – must also, by oath or affirmation, pledge to support the Constitution. Our state codifies this in Article 15, Section 4 of the Indiana Constitution.
5. What happens if Congress passes a clearly unconstitutional law, the President signs it, and the Supreme Court upholds it? The Constitution was not written to be obscure or abstruse – it was to be comprehensible to the average person reading it in 1788 and thereafter. It was publically debated, most famously in the Federalist and Anti-Federalist writings. Despite somewhat archaic language, grammar, and even punctuation, with a little study it remains comprehensible today. We don’t need a collection of black robed, legal sacerdotes from Ivy League schools to divine its meaning for us.
6. The United States faced the issue of the Federal Government violating the Constitution for the first time in 1798, with the passage of the Alien and Sedition Acts. Arguing against the foreign policy of the U.S. Government constituted sedition and was punishable by fine and imprisonment. There was no enumerated power for the Federal Government to do this. Moreover, the 1st Amendment clearly stated that Congress could “…make no law…” abridging the freedom of speech. In response, Jefferson and Madison penned Nullification resolutions for Kentucky and Virginia respectively.
7. Though the 10th Amendment is always cited in the matter of reserved state power, the fact that state officials pledge to support the Constitution, not the Federal Government, is almost always neglected. Nullification has been in bad odor since the Civil War – the first serious discussion of nullification which dealt with free speech, is always eliding from history courses. It won’t do to suggest that there may be times with the last defense of the Constitution can ONLY come from states AND that this defense is LAWFUL.

Tax Resistors who refuse to pay some or all of their income taxes because they object to the use(s) to which the Federal Government put(s) their money are engaging in civil DISOBEDIENCE. They are violating a Constitutional Federal law. When citizens of a state call on it to not enforce unlawful Federal Laws or to detain or arrest Federal Officials acting in violation of the U.S. Constitution, the citizens and their State are engaging in Civil Obedience.

I recommend that we begin using the term “civil obedience” in our normal discourse, when we write articles, or when we speak formally to our elected Representatives, whether Federal, state, or local. As a practical matter, support any elected representative in Indiana government, irrespective of party, who is willing to stand up against unconstitutional Federal Laws, Executive Orders, and Regulations.

Arguably, most of what the Federal Government does it has no authority to do under that Constitution. That said, this is not the time to restore our Federal Republic in toto – it is politically impossible. However, what we can do is reestablish the principle that states too have the authority to defend the Constitution.

Obviously, defense of the right of self-defense against garden variety malefactors and jack-booted Federal thugs is the priority. In addition, there are a couple of very unpopular Federal usurpations that we can tie our RKBA activities to: Obamacare and the TSA. How can we allow ourselves to be groped and molested by Federal Agents with impunity? Texas and a handful of states have begun to take action. Let’s get Indiana involved. Take advantage of Federal overreach.

Finally, NEVER, use the word “secession”. We are calling on our state to UPHOLD the Constitution, not repudiate it. If any state(s) should secede, it is those Blue States that hold the idea of our Federal Republic and its Constitution in contempt.

There is a quote from Winston Churchill which I think is particularly apposite regarding the perilous state of our Republic and our freedom. Let me share it with you:
“…f 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 so costly, you may come to the moment when you will have to fight with all the odds against you and only a precarious chance for survival. There may be a worse case. You may have to fight when there is no chance of victory, because it is better to perish than to live as slaves.”

We have reached stage two – the odds are against us but we still have a chance. We can’t afford to wait for a better or more propitious time because it doesn’t exist. From now on, political action must move to the states. Here in Indiana, we must help our state officials by showing them they have our support in standing up to unlawful Federal acts.

Act now.

 

[paulhager]

I hoped this posting might generate some discussion - perhaps the thread title was misleading.

Although there is a lot of discussion about the 10th Amendment and even nullification, serious discussion outside of our conservative-libertarian echo chamber is virtually nonexistent. To broaden the discussion necessarily entails separating nullification from the idea of slavery and the Civil War, which is the association that the vast majority of people have, if they know anything about it at all. When we argue in favor of Indiana and other states nullifying unconstitutional Federal Laws, we need to offer the strongest arguments and this post was a first draft, if you will, of how the arguments could be laid out.

Four more years of Obama means at least two more young, radical SC Justices and numerous radical Federal Judges. He might even get to replace one or more of the nominally conservative Justices. At that point, any regulation that Congress can dream up will be deemed "reasonable regulation". Perhaps Executive Orders will be judged be acceptable as well.

We need to actively push nullification as an option now - we can't afford to wait.

I'm interested in any thoughts/discussion on how to proceed.

 

[TheRude1]

Freedom is the sure possesion of those alone who have the courage to defend it. Pericles

Thats all I have to say about that

Good topic !

Thanks

 

[mk2ja]

Great post.

 

[Survivalcookie]

Looks like we can have Obama arrested for civil disobedience....not allowing the states to follow the law when it comes to immigration
.

 

[Survivalcookie]

You wrote a great piece...I just find people now a days, sit behind their computers and are all talk and no action. People wanted a 3rd party...Libertarians. How many went out and went door to to door explaining what Libertarians can do, how many did fund raising for the Libertarian party, how many set up appearances by libertarian candidates? Will the same who did not vote, or voted libertarian get off their collective asses and do something to help make it happen next time. You cannot wait until August of 2016 to act. You have to put your money where your mouth is. now!

 

[yepthatsme]

Excellent article. I hope everyone on here will read it and support it.

 

[AlphaSig112]

I find your thought to be most intriguing. I do suppose the problem I see with the majority of what you had to say was at the very end when an ambiguous call to action was made. I understand the odds are against us but how would we do more than engage in the conversation with our elected officials on this issue. If there is enough support for anything the politicians will do it irregardless of the constitution as is evidenced by the NDAA. I agree with everything you had to say but I have done all I know to do. I write and call almost daily to speak my mind. My company sends employees to work the poles on election day. Unless there is to be a fundamental change in the workings of the federal government or at the state level we are not going to see a shift to logic until after the inevitable collapse of the American Empire. After times of trouble and pain there is often a lesson learned and we are headed to the point of pain at the end of trouble. The problem is the lesson is nearly always forgotten within three generations. i.e. the current iteration of "we the people". There are hard lessons to learn in the future and we are planning on making them as painful as possible. There is no way back from our current debt so our international posturing as a giant is only supported by our ability to borrow in the future. The best way to take what is necessary from the people is to disarm them. When property is seized and sold to pay national debt an unarmed populace is incapable of fighting it so lets remove weapons from the hands of the people who would fight and then steal everything else necessary to pay for spending. All we are seeing now is a distraction from the real issues. The lie of ending war when we are headed to police Mali and Somalia and will never fully leave anywhere. The failures of our leadership is innumerable and truly terrifying. We as a people must be prepared to defend our homes and our state as that will be all that remains when the Fed leaves us to fend for ourselves. Good real world example of leaving people defenseless in time of trouble is Katrina where everyone was left to fend for themselves. The police went to disarm the people and that will happen on a national level given any excuse such as terroristic threats.

The only thing I know to do at this juncture is to continue to fight the fight for responsibility and preservation of rights. The only voice that matters is the one that can be heard. I strive to voice my opinions whenever possible. I voice my opinion with my vote. I make myself ready to defend property life. What more can we do? Is there no way to reach those who would not hear? Preaching to the choir will only get the same thing we've always gotten. As the last bastion of freedom the United States must not fall to the tyranny of the few but rather be raised up as a shining city of opportunity on the hill. We the people must be the change we want to see and elect officials that would not abandon our rights for any reason. We must do everything we can to create a "land of the free, home of the brave."

 

[jgreiner]

There is a quote from Winston Churchill which I think is particularly apposite regarding the perilous state of our Republic and our freedom. Let me share it with you:
“…f 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 so costly, you may come to the moment when you will have to fight with all the odds against you and only a precarious chance for survival. There may be a worse case. You may have to fight when there is no chance of victory, because it is better to perish than to live as slaves.”

A great quote, but as always, the Brits are too verbose. Patrick Henry summed it up more succinctly. Give me Liberty, or give me death.

 

[jayhawk]

I find your thoughts on civil disobedience interesting, but I find it odd that you make these points (esp #5) without a mention of Marbury v Madison or judicial review. Some have argued that judicial review was an implied power of the courts even before being formally introduced in Marbury. Obviously, one can get buried in arguments or theories for, against or about judicial review, but it seems that it is both the vehicle with which constitutional creep occurs and overwhelming accepted as a necessary power of the courts.

I'm not a constitutional scholar by any means, but I understand judicial review as the last check in the series of checks and balances. The only check to judicial review, it seems, is more judicial review.

Thoughts on this as it pertains to effective civil disobedience at any level, state, federal or otherwise?

 

[paulhager]

You wrote a great piece...I just find people now a days, sit behind their computers and are all talk and no action. People wanted a 3rd party...Libertarians. How many went out and went door to to door explaining what Libertarians can do, how many did fund raising for the Libertarian party, how many set up appearances by libertarian candidates? Will the same who did not vote, or voted libertarian get off their collective asses and do something to help make it happen next time. You cannot wait until August of 2016 to act. You have to put your money where your mouth is. now!

Strongly agree - we have to get active - which is the thrust of the piece. Incidentally, folks might be interested in my Why I Carry website, which details my open carry activism from December 2000 to September 2011.

There is a fatal problem with supporting the LP at this time. I say this as someone whose first vote for President in 1976 was Libertarian candidate Roger McBride; as someone who was 12 years in the Libertarian Party; as someone who ran for US Representative on the LP ticket in 1996 and 1998 and US Senate in 2000. For my LP-related writing, see The Libertarian Corner. Please read the extended piece explaining why I left the LP (Why I left the Libertarian Party and joined the Republicans). I discuss voting science in this piece and why the voting system must change for a multiparty system to evolve in the U.S.

Incidentally, I'm planning on taking the day off on 8 February. As I understand it, there is a call for supporters of RKBA nationwide to show up at State Capitols. Is there any active planning for such an event in Indiana?

 

[paulhager]

I find your thought to be most intriguing. I do suppose the problem I see with the majority of what you had to say was at the very end when an ambiguous call to action was made. I understand the odds are against us but how would we do more than engage in the conversation with our elected officials on this issue. If there is enough support for anything the politicians will do it irregardless of the constitution as is evidenced by the NDAA. I agree with everything you had to say but I have done all I know to do. I write and call almost daily to speak my mind. My company sends employees to work the poles on election day. Unless there is to be a fundamental change in the workings of the federal government or at the state level we are not going to see a shift to logic until after the inevitable collapse of the American Empire. After times of trouble and pain there is often a lesson learned and we are headed to the point of pain at the end of trouble. The problem is the lesson is nearly always forgotten within three generations. i.e. the current iteration of "we the people"... ."

You are correct that my call to action didn't lay out specifics. I figured this was the place to discuss options.

Like you, I've been frustrated by the amount of effort I've expended over the years with so little to show for it. Still, the development of the Tea Party - that congeries of conservative-libertarians who have begun to take over the GOP from within - is the most hopeful development in my lifetime. A true, pro-freedom mass movement is a rare thing in the history of the world and we have one that exists right now that we can use.

Also, there are states that have begun to take the first tentative steps toward nullification. There is clearly support for this idea. I'm arguing in general terms that we should try to get Indiana to start moving in that direction. How? Piggy back on political activities by the Tea Party and related groups.

I'm sure we're all depressed by the 2012 election. And much as I loath the national GOP leadership, we're stuck with them for the foreseeable future. The kind of organization and money needed to run the same kind of innovative approach used by Obama to get elected (discussed in Technology Review, if I remember correctly) will have to be supplied by the RNC, certainly for anything nationally.

I was almost suicidally depressed back in September when it was becoming more and more likely that Obama was going to pull off a win. Fortunately, I can't stay depressed for very long. In any case, I don't think it is hopeless at all. There a lot of people who think as we do who are very active and have been enjoying success.

The thing to always remember is that in politics as in war, there will always be reverses. The answer is to keep charging. And, we should believe our own rhetoric. Not only do we have a huge, effective mass movement, we have guns. I'm not suggesting armed insurrection - far from it. But, in principle we should be invincible. If not, then the idea behind the 2nd Amendment is wrong and the American experiment was just a historical fluke.

In one of the pieces I wrote on my Why I Carry site, I talk about the "ultimate terror weapon" of the Revolutionary War: the Pennsylvania Long Rifle. American marksmen using a purely civilian weapon gave the Continental Army a significant amount of firepower they would have otherwise lacked and were likely decisive at the Battle of Saratoga. In that battle, British officers received special attention, and their loss reduced unit effectiveness and morale. In the end the Continental Army prevailed, France became an ally, and...the rest is history.

If we have the will we can't lose in the long run.

 

[paulhager]

I find your thoughts on civil disobedience interesting, but I find it odd that you make these points (esp #5) without a mention of Marbury v Madison or judicial review. Some have argued that judicial review was an implied power of the courts even before being formally introduced in Marbury. Obviously, one can get buried in arguments or theories for, against or about judicial review, but it seems that it is both the vehicle with which constitutional creep occurs and overwhelming accepted as a necessary power of the courts.

I'm not a constitutional scholar by any means, but I understand judicial review as the last check in the series of checks and balances. The only check to judicial review, it seems, is more judicial review.

Thoughts on this as it pertains to effective civil disobedience at any level, state, federal or otherwise?

You are absolutely right about Marbury and how judicial review has been a major factor in creeping, unconstitutional centralization and consolidation of Federal power, particularly in the 20th Century. I don't want to get sidetracked on judicial review except to say that in Article II, Section 2, it is stated that the SC has appellate jurisdiction "both as to law and fact". I think judicial review is a power of the SC. That said, I strongly disagree that the SC is the "last check" in the series of checks and balances. The point of my posting was to say the the final check is the states themselves. We can find that in Article VI where state officials pledge to support the Constitution, the 2nd Amendment guarantee that states and their citizens can't be disarmed and can therefore defend themselves and their states from a despotic Federal Government, and the 10th Amendment, which reinforces the Doctrine of Enumerated Powers.

As you suggest, it is widely BELIEVED that the SC is the last check in that series of checks and balances. I argue that the SC most assuredly is NOT the final check. The states and, finally, the people are. There is a movement in progress for states to assert their CONSTITUTIONAL power against the Federal Government. This is the movement that we should foster. Sure, work with the Tea Party and allied groups but start pushing the idea of nullification while delegitimizing the SC. The reading comprehension of the average American is at least as good as most of the Justices of the SC. SC Justices are not demi-gods. They can be and often are consummately wrong.

There is a statement attributed to Andrew Jackson concerning an adverse SC decision, "John Marshall has made his decision, now let him enforce it." Whether he actually said it or not, the point is that, in the final analysis, an unconstitutional Federal Law has to be enforced by someone. If the officials of the Federal Government are denied the ability to enforce those laws then the laws become null and void.

There is a movement forming right now. Sheriffs around the country are saying they won't enforce Federal gun laws. Texas is starting to get feisty. Speaking as an expatriot Texan, I can attest to the independence and general orneriness of Texans, especially when their rights are under attack. Other state officials are talking up the 10th Amendment.

When a movement starts to form, help it along - that's what I'm saying.

 

[Rocket]

I believe Some in The Indiana Legislature are thinking along these lines. I received a letter from Senator Walker today.

"I agree with you that no new firearms legislation is probably the best approach, and I do not support any except for Sen. Banks, and Sen. Tomes bill to eliminate the 'gun free zone' concept around our public institutions of higher learning, though it will likely not receive a hearing. I am a consistent supporter of 2nd amendments rights. ............... The bigger issue is this; what is a state legislator to do when the rule of law is not honored by a usurpatory federal administration? It is not merely the keeping of arms that is important; it is the responsibility and obligation to know WHY we must keep arms. The main reason is not for hunting, sport, or even for personal defense. Plan for the worst, and hope for the best."

This gentleman has the right of it. We need to support him.

 

[RockofStrength]

I believe Some in The Indiana Legislature are thinking along these lines. I received a letter from Senator Walker today.

"I agree with you that no new firearms legislation is probably the best approach, and I do not support any except for Sen. Banks, and Sen. Tomes bill to eliminate the 'gun free zone' concept around our public institutions of higher learning, though it will likely not receive a hearing. I am a consistent supporter of 2nd amendments rights. ............... The bigger issue is this; what is a state legislator to do when the rule of law is not honored by a usurpatory federal administration? It is not merely the keeping of arms that is important; it is the responsibility and obligation to know WHY we must keep arms. The main reason is not for hunting, sport, or even for personal defense. Plan for the worst, and hope for the best."

This gentleman has the right of it. We need to support him.

That is awesome. I say we clone him and elect him to Indiana office

 

[paulhager]

I believe Some in The Indiana Legislature are thinking along these lines. I received a letter from Senator Walker today.

"I agree with you that no new firearms legislation is probably the best approach, and I do not support any except for Sen. Banks, and Sen. Tomes bill to eliminate the 'gun free zone' concept around our public institutions of higher learning, though it will likely not receive a hearing. I am a consistent supporter of 2nd amendments rights. ............... The bigger issue is this; what is a state legislator to do when the rule of law is not honored by a usurpatory federal administration? It is not merely the keeping of arms that is important; it is the responsibility and obligation to know WHY we must keep arms. The main reason is not for hunting, sport, or even for personal defense. Plan for the worst, and hope for the best."

This gentleman has the right of it. We need to support him.

Here! Here!

BTW, Senator Tomes wouldn't happen to be Jim Tomes would it? There is a fellow from down south who was very political on the 2nd Amendment named Jim Tomes. Organized a group called the 2nd Amendment Patriots. I participated in some events and spoke to the group a few times. Good guy.

 

[jayhawk]

You are absolutely right about Marbury and how judicial review has been a major factor in creeping, unconstitutional centralization and consolidation of Federal power, particularly in the 20th Century. I don't want to get sidetracked on judicial review except to say that in Article II, Section 2, it is stated that the SC has appellate jurisdiction "both as to law and fact". I think judicial review is a power of the SC. That said, I strongly disagree that the SC is the "last check" in the series of checks and balances. The point of my posting was to say the the final check is the states themselves. We can find that in Article VI where state officials pledge to support the Constitution, the 2nd Amendment guarantee that states and their citizens can't be disarmed and can therefore defend themselves and their states from a despotic Federal Government, and the 10th Amendment, which reinforces the Doctrine of Enumerated Powers.

As you suggest, it is widely BELIEVED that the SC is the last check in that series of checks and balances. I argue that the SC most assuredly is NOT the final check. The states and, finally, the people are. There is a movement in progress for states to assert their CONSTITUTIONAL power against the Federal Government. This is the movement that we should foster. Sure, work with the Tea Party and allied groups but start pushing the idea of nullification while delegitimizing the SC. The reading comprehension of the average American is at least as good as most of the Justices of the SC. SC Justices are not demi-gods. They can be and often are consummately wrong.

There is a statement attributed to Andrew Jackson concerning an adverse SC decision, "John Marshall has made his decision, now let him enforce it." Whether he actually said it or not, the point is that, in the final analysis, an unconstitutional Federal Law has to be enforced by someone. If the officials of the Federal Government are denied the ability to enforce those laws then the laws become null and void.

There is a movement forming right now. Sheriffs around the country are saying they won't enforce Federal gun laws. Texas is starting to get feisty. Speaking as an expatriot Texan, I can attest to the independence and general orneriness of Texans, especially when their rights are under attack. Other state officials are talking up the 10th Amendment.

When a movement starts to form, help it along - that's what I'm saying.

Interesting points, and of course we've seen this type of check or civil disobedience throughout history...recently and notably with Colorado's marijuana legislation. It will be interesting to see how the federal government responds to that situation.

One point I'd like to make though in terms of "popular" civil disobedience is that it is somewhat necessary to separate constitutional law from the will of the majority. The majority or the states, as it happens, are not always interested in defending civil liberties. Perhaps state level or popular civil disobedience "should" only apply if the majority seeks to undermine rather than protect the constitution, but these things are ultimately a matter of perception (as indicated by a couple hundred+ years of legal wrangling). Ultimately, in practice it seems that this popular and state level civil disobedience flows back to the federal level (sometimes over years) in the form of legislation and again to the courts.

I guess I'm confused as to how states would legally assert their constitutional power against the federal government. Is there some formal way a state could, for instance, stop the BATFE at it's border?

 

[ArmedProgrammer]

Interesting points, and of course we've seen this type of check or civil disobedience throughout history...recently and notably with Colorado's marijuana legislation. It will be interesting to see how the federal government responds to that situation.
...

I guess I'm confused as to how states would legally assert their constitutional power against the federal government. Is there some formal way a state could, for instance, stop the BATFE at it's border?

Did you read the letter by the Utah Sheriff's Association? THAT is how it's done. It simply and politely, but firmly drew a line in the sand.

 

[jayhawk]

Did you read the letter by the Utah Sheriff's Association? THAT is how it's done. It simply and politely, but firmly drew a line in the sand.

I did, and I guess I have a lot of questions about this line: "No federal official will be permitted to descend upon our constituents and take from them what the Bill of Rights--in particular Amendment II--has given them."

The letter itself probably doesn't hold any legal weight (on the federal level anyway). The Utah Sheriff's Association can choose to not actively work to help enforce federal regulations. They can state that they will not "permit" federal officials to operate in certain ways, but a couple questions remain. Can (or would) the sheriffs actually attempt to stop federal officials from operating in the state? Would that be legal, and who would determine whether or not it is legal? Or would federal officials simply operate in the state as they see fit without permission of the Utah Sheriffs Association? Clearly, it is a moving letter and a moving gesture, but does it actually do anything legally?

Does civil disobedience stop at simple non-compliance? Do the states and citizens have any real legal check to the supreme court or federal legislation when it comes to preventing federal execution of federal law?

And sorry, I'm not trying to be condescending or anything. Maybe these questions are at least partly rhetorical. I'm just admittedly not that well versed in state/federal power as it would play out today, and though I may be in a minority on this forum for saying so, I'm not the type that views constitutional law as simple and cut and dry.

 

[paulhager]

The beginnings of an answer can be found in the The Kentucky Resolutions of 1798 (ghost-written by Thomas Jefferson). This and the 1798 Virginian resolution (written by James Madison) were responses to the Alien and Sedition Acts. The first point in the Kentucky resolution should be the focus.

Politically, the problem is that nullification is associated with Lester Maddox and other southern Governors resisting the Federal Government integrating public schools. That's what the other side will always raise as an objection. Just because a check/balance is misused on one occasion doesn't make it invalid - the Alien and Seditiion Acts being the counter argument.