[Note: My son, Tim, writes today's column. He is an attorney who received his Juris Doctor degree from Cumberland School of Law in Birmingham, Alabama. He is a former prosecutor for the Florida State Attorney's Office and now owns his own private law practice. He is married to the former Miss Jennifer Hanssen.]
Let's be honest, America is facing the same legal, moral and ethical questions that our Founding generation did, especially regarding the issue of "Who Is Sovereign in the United States." For our Founders, they fought, bled and died on the principles that no man or government has the right to rule over others contrary to their agreement (i.e. compact, constitution) and contrary to the principles of natural law as revealed in the Creation of God; that all men are born in nature with the power to govern themselves; and that no Sovereign government, established lawfully by the consent of we the people, can be usurped and controlled by any other entity. Thus, today in America, the question once again comes down to "Who is Sovereign in the United States?"
Today, there are 3 basic options for "Who is Sovereign in the United States": (1) the Federal government, (2) the State governments or (3) We the People. I feel confident in stating that most contemporary Americans believe that the answer to this critical question is the Federal government—especially as it concerns any practical effect on the power of and over government. For years, Americans have been brainwashed though public education, major media networks and politicians that ALL federal laws are the "supreme law of the land" and that no state law or action to the contrary is valid, citing Article 6, paragraph 2 of the US Constitution as their "irrefutable" proof. Of course they are completely wrong: American ideology and legal fact states that sovereignty rests with "we the people." However, the question must be more narrowly defined.
That is, does the sovereign power of we the people rest with all the people in the nation as one body, or does the power rest with the people THROUGH the respective States? The answer to this question cannot be overstated, because if the sovereign power rests with we the people collectively as one body, then the States have absolutely no power and at the ratification of the US Constitution, the States lost all powers originally granted to them by their respective sovereigns (the people of that State). To the contrary, if Sovereignty rests within or through their respective States, then the States conversely have more power than what is being admitted today by the "Centralists" of our day.
Through an honest study of the history and the context of the Articles of Confederation, the US Constitution, the Constitutional Convention and subsequent Ratification debates, the Federalist Papers, the Anti-Federalist Papers, the rulings of subsequent US Supreme Court Rulings and the writings of political philosophers and statesmen of the 1700s and 1800s, the conclusion is undeniable and clear: We the People are the Sovereigns of the States respectively and of the States United through our respective States.
Thus, the issue is not who is Sovereign, because we know that We the People are sovereign in the US and that the Sovereigns of each State have never ceded to the Federal government any power not expressly granted to it by the Compact (the US Constitution). But rather, the issue is one of JURISDICTION: in other words, who has the power to act on behalf of and in compliance with the Sovereign? The issue of jurisdiction is so important because it acknowledges that since the Sovereign has "paramount authority" in government, any powers that are granted from the Sovereign to government are to remain within that grant of authority. Put another way, the States can no more grant authority to the Federal government against the will of the Sovereign—the people—than the Executive branch of the Federal government can give to the Judiciary branch the powers that we the people granted to it alone. To deny that such a grant exists or conversely to ignore the limitations placed on the governments by the Sovereign is to suggest that tyranny is a lawful act and that it must be complied with. America's founders would have considered such a political theory to be treasonous. Do we the people think so seriously of the matter? According to recent events, the answer to this question will likely be answered sooner than later.
As some of you may know, several states have and are passing legislation regarding the independence and sovereignty of the people of their respective states. More specifically, the states of Tennessee and Montana have passed "Firearms Freedom Acts," which have become law and which reaffirm their Sovereignty under the 10th Amendment of the US Constitution. This law states that any firearms that are made, sold and bought in that state are NOT subject to the Federal regulations of firearms, because they are inherently internal affairs, which exempt them from the commerce clause of the US Constitution.
As you would imagine, the Federal government, through its agency, the Department of Justice, did not take too kindly to Tennessee's assertion of jurisdiction over this matter and position that the federal laws did not apply to the subject matter at hand. This federal opposition has become known through the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), whereby they informed the firearms licensees in an "open letter" (PDF ) in Tennessee that the recently enacted law (Firearms Freedom Act) does not apply and is void and that they (the firearms licensees) must still obey and submit to the federal laws, regardless of the State's statute.
This ATF response tells us the following about the federal government's ideology of Sovereignty: (1) the federal government does not recognize the lawful and independent jurisdiction of the Sovereigns of Tennessee to operate their internal affairs as they deem proper and fitting; (2) the Sovereigns of Tennessee do not possess lawful jurisdiction to govern themselves through constitutional means; (3) the federal government has the power and authority to control the internal affairs of all States, as they deem fit. Bottom line, the Federal government is Sovereign. With their theory in mind, however, what commodity, what relationship, what contract, what service, or what molecule in this entire country would not be subject to their control and power?
This issue is the very same reason why the Colonists declared their independence from Great Britain in 1776 and why Great Britain declared the Colonies to be in a state of rebellion against the government. The conflict was in fact the application of their Constitution: whether it be a "living" constitution or whether it be "fundamental laws" based upon the intent and will of the people. The fact is, it was the Great-Britain-view of their constitution verses the American-view of their constitution that caused the conflict between the crown and the colonies. One historian summarizes the conflict this way:
"The contrast cannot be too strongly insisted upon. [The colonists], on the one hand, believed that the British Constitution was fixed by 'the law of God and nature,' and founded in the principles of law and reason so that Parliament could not alter it, but [Great Britain believed] that 'the constitution of this country has been always in a moving state, either gaining or losing something,' and 'there are things even in Magna Charta which are not constitutional now' and others which an act of Parliament might change. Between two such conceptions of the powers of government compromise was difficult to attain . . . Such differences in ideals were as important causes of a breaking-up of the empire [of Great Britain] as more concrete matters like oppressive taxation." (Claude Halstead Van Tyne, The Causes of the War of Independence, Volume 1, [University of Michigan, Houghton Mifflin Company, 1922], 235, 237).
Indeed, the issues of taxation during the 1760s and 1770s were only fruits of the underlying issue, and that is, who is Sovereign in America. According to Great Britain, the government had the power to impose its will on the people of America despite the will of the colonies and despite the natural laws governing the compact between the English people and their government. In other words, the government believed that their constitution was "living," giving the government power to impose its will on the people, without the people's consent. The colonists, however, saw the matter to be a usurpation of their God-given right to be governed by their consent and in compliance with their constitution. The end result: the Sovereigns in each colony seceded from the empire of Great Britain because of Great Britain's refusal to follow their constitution.
Do Sovereigns throughout our States United not see the significance of the issue we are facing today? Are we so blind to history that we cannot compare this scenario to the very scenarios that led to the American Revolution? Are we so ignorant as to the intents and purposes of the US Constitution? Consider that the "supreme laws of the land" were never meant to be carte blanche powers of the Federal government, but instead federal laws were expressly limited by the terms of the compact between and for the States, found in the Constitution. This concept of "supreme law of the land" was expressed by a founding father, whom many would consider to be a "centralist" in belief, Alexander Hamilton, in Federalist Paper #27:
"[T]hat the laws of the Confederacy [meaning, the United States of America—yes, even Hamilton, along with many other founders, such as George Washington, called the US Constitution a Confederacy, because they knew that the nature and character of the compact of the US Constitution did not change from the Articles of Confederation] as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land, to the observance . . . in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operation of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS."
Hamilton's legal position concerning the limited power of the federal government and the "supreme law of the land" was the consensus of the founders, the States and we the people. Nowhere in America's founding was there the notion that the supreme laws of the land were anything contrary to the compact FOR the States. The supreme laws of the land are simply those "fundamental laws" that we the people have created and imposed upon the government to follow and uphold.
Of course, the question has been raised over the past 150 years of "who has the power to determine whether or not the Federal government has usurped their constitutional authority?" The popular answer is (wrongfully), the US Supreme Court. God forbid that the Sovereigns of each State must wait and rely on 9 federal judges to make rulings of this nature before a State would have any legal rights or justification to act in accordance with the will of their Sovereigns. Indeed, the ATF interpreted the Constitution unilaterally without the opinion of the US Supreme Court and without opinion or order denied the constitutionality of Tennessee's Firearms Freedom Act. The Sovereigns in each state have the same power, and the historical and legal evidence is plentiful. Consider Thomas Jefferson's position:
"[T]he States should be watchful to note every material usurpation on their rights; denounce them as they occur in the most peremptory terms; to protest against them as wrongs to which our present submission shall be considered, not as acknowledgments or precedents of right, but as a temporary yielding to the lesser evil, until their accumulation shall overweigh that of separation." (Thomas Jefferson and John P. Foley, ed., The Jeffersonian Cyclopedia, A Comprehensive Collection of the Views of Thomas Jefferson, [New York and London: Funk & Wagnalls Co., 1900], 133)
I will not attempt to persuade the reader at this point on the fallacious position that only the US Supreme Court can make a determination of constitutional actions. However, for those who would argue that the US Supreme Court is in fact the only legal means by which a State can say "no" to the federal government, then I believe that such a person has reached the point of voluntary slavery, and such a person is dangerous to the concepts of federalism, American-sovereignty, and constitutional limits and freedom, as expressed by thousands of the most influential men in our history. And such a person has accepted only those political means of redress whereby the Sovereigns of each State drudge through the treacherous mud of tyranny and get absolutely nowhere.
What we are seeing today, and have seen for over 100 years in America, is the usurpation of the federal government over Sovereignty—we the people—and over Jurisdiction—the States. While this article cannot begin to expound in depth the true character and nature of the US Constitution, a study of history reveals that the US Constitution was an agreement between the Sovereigns of each State whereby they acceded to give up only certain parts of their sovereignty for the "more perfect union" of the people within those States. As with any sovereign people or government, accession may be limited to whatever means and ways necessary to protect the freedom of that society. This is in fact what the Colonists did in 1776 when declaring independence from Great Britain, what the States did in 1781 when ratifying the Articles of Confederation, and what the States did in 1787 when ratifying the US Constitution. It was the Sovereigns, through their respective States, who declared their natural rights under God, who secured their natural rights through independence from governments and who expressed that any act outside of their consent is tyranny.
When this recognition resounds in the hearts and minds of the people, as our Declaration of Independence states, "it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." Do you really think after only 11 years from the signing of the Declaration of Independence that those same people who risked everything for independence from those "living-constitutionalists" in Great Britain and who believed in the principles seen in the Articles of Confederation would have completely renounced their understanding of a Confederacy and Federalism and would have resigned the same and delegated all of their powers that they fought and died to secure for each State and for their citizens? If you think so silly a notion, you severely impose injustice upon the intelligence and intentions of our founders.
However, the record is clear that the Sovereigns of each State never ceded to the federal government powers not expressly vested to it and never waived the ability to reclaim that power through their proper channels—the States—the same channels by which the US Constitution was ratified. Consider the Sovereigns' voice in the State of Virginia in 1787:
"We the delegates of the people of Virginia . . . Do, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby, remains with them and at their will; that therefore no right, of any denomination, can be cancelled, abridged, restrained or modified by the congress, by the senate or house of representatives acting in any capacity, by the president or any department, or officer of the United States, EXCEPT IN THOSE INSTANCES IN WHICH POWER IS GIVEN BY THE CONSTITUTION FOR THOSE PURPOSES." (Emphasis added.)
However, the Federal government today does not recognize the Sovereignty in the people of the respective states; it does not recognizes the respective States' jurisdiction over all matters not expressly delegated to the federal government; and it does not seem to acknowledge State Sovereignty under the 10th amendment of the US Constitution. Given their evident intent and purposes to continually grow in power and to continually oppress and suppress the sovereignty of we the people, against our respective states, the question becomes, how will they be made to understand this? It is of course up to the Sovereigns in each state to answer this question. And we see the answers arriving through State laws such as the Firearms Freedom Act.
TThe time has come in America where to be free necessarily means to resist status quo and federal usurpation and to actively change the course and philosophy being shoved down our throats. There really is no middle ground any more. This is not a matter of politics anymore. This is not a matter of Republican and Democrat. This is a matter of FREEDOM, as much so as were the matters of 1775 and 1776. It is staring you in the face, daring you to make a move. May we never be guilty of causing, whether by our apathy, indifference, laziness or comfort, this nation to lose the freedoms that our founders attempted to secure with infinite pains and labors. We the people must once again reassert our Sovereignty in this country and the States must recognize and act upon their God-ordained role as Freedom protectors and tyranny resisters.