Publius Huldah: When the feds violate the Constitution, should we blame the Constitution?

Attorney Publius Huldah has some important to understand criticisms for the Convention of States movement in When the feds violate the Constitution, should we blame the Constitution?

In Rob Natelson’s paper [link], “The Solution is a Convention of the States”, he makes claims about what our Framers said is the purpose of amendments to our Constitution which are not true. He also gives false assurances about the safety of a convention called by Congress under Article V of the Constitution.

At the outset, we should note that the title of Natelson’s paper incorporates a stratagem which creates the false belief that the States control the convention. The belief is false because the convention provided for by Art. V of the Constitution is a federal convention called by the federal government to perform the federal function of addressing our federal Constitution. It is not a state function; accordingly, the term, “convention of States”, does not appear in Article V. So the “Convention of States movement” (COS), of which Natelson is “senior advisor”, renamed the convention provided for in Article V as a “convention of the States”; 1 and re-defined it as “a convention controlled by State Legislatures”.

Now let’s examine various other claims on which COS builds its case.

1. The fabricated George Mason quote

COS claims that our Framers gave us the convention method of getting amendments so that when the federal government “violate[s] its constitutional limitations”, we can get a convention to “make adjustments to the constitutional text in order to rein in the abuse of power by the federal government.” Or, in plain English, when the feds violate the Constitution, the solution is a convention to amend the Constitution.

But our Framers didn’t say that. The falsity and absurdity of COS’s claim is exposed here. What our Framers actually said is that the purpose of amendments is to correct defects in the Constitution. And they recognized that the purpose of a convention is to get another Constitution. James Madison warned that those who secretly want to get rid of our Constitution would push for a convention under the pretext of getting amendments.

2. Natelson’s claims re using amendments to “overrule bad Supreme Court decisions” & “restrain federal power”

Natelson admits that the Framers said we can use amendments to correct defects in the Constitution; but then muddles up what the Framers actually said with what they never said, thereby seemingly legitimizing his misleading claim that the Framers envisioned that we could use amendments to “overrule bad Supreme Court decisions” and “restrain federal power”.

As an example of a “bad” Supreme Court decision, Natelson claims that “[i]n early 1795, the States ratified the 11th Amendment to reverse an overreaching Supreme Court decision”.

The decision he is referring to is Chisholm v. Georgia (1793) [link]; and what he says about it isn’t true. What Chisholm actually stands for is this: Our Constitution originally delegated to federal courts the power to hear cases “between a State and Citizens of another State” (Art. III, §2, cl.1). But when a Citizen of South Carolina sued the State of Georgia, States were outraged! Georgia sued. In Chisholm, the Supreme Court decided the case in accordance with the Constitution and held that Chisholm could maintain his suit.

But the States didn’t want Citizens of other States suing them. So the States ratified the 11th Amendment which took away from the federal courts the constitutional authority to hear cases filed by a Citizen against another State. So the 11th Amendment illustrates what our Framers actually said is the purpose of amendments: to fix defects in the Constitution.

Natelson also claims that our Framers said we could use amendments to “restrain federal power” when the federal government “exceeded and abused its powers”.

Again, Natelson muddles up the true and the false when he fails to distinguish between usurpations of undelegated powers and abuses of delegated powers.

No Framer said that amendments could be used to restrain usurpations of powers not delegated. And in Federalist No. 49 (last para) James Madison says the opposite. He warns against another convention and says, “occasional appeals to the people [a convention] would be neither a proper nor an effectual provision” for restraining the federal government within its legal powers.

But when the federal government abuses a delegated power, an amendment could be appropriate. Here’s an example: the Tariff Act of 1828 was constitutional since tariffs are authorized by Art. I, §8, cl. 1. But it was abusive because it benefited infant industries in the Northeast at the expense of the Southern States. So what’s the remedy for such abuse of delegated power? Article I, §8, cl. 1 could be amended to say that Congress may impose tariffs only to raise revenue to carry out the enumerated powers; and may not impose tariffs in order to benefit one section of the Country at the expense of other sections.

3. Natelson’s proposed “corrective reforms” to the Constitution

Natelson says he wants a convention to get a balanced budget amendment (BBA); to curb “undemocratic and unfair” regulations; to reverse “liberal-activist Supreme Court decisions”; to impose term limits; and get other amendments “to restrain federal power”.

But as anyone who has read it knows, our Constitution already limits the federal government to a handful of enumerated powers. The powers are listed here. The categories of cases federal courts are authorized to hear are listed at Art. III, §2, clause 1. All the problems of which COS and Natelson complain are the result of violations by the federal government of the existing constitutional limitations on their powers – and the States’ acquiesce in such violations!

Balanced Budget Amendment: Our Constitution already limits federal spending to the enumerated powers. But for 100 years, everyone has ignored the existing limits on federal spending. A BBA would replace the existing enumerated powers limitation on federal spending and create a new constitutional authority to spend on whatever the President or Congress put into the budget! A BBA thus legalizes spending which is now unconstitutional as outside the scope of the enumerated powers, and transforms the federal government into one which has constitutional authority over whatever Congress decides to spend money on.

Federal Regulations: Article I, §1 vests all lawmaking powers in Congress. So all regulations issued by federal executive agencies which purport to apply to the Country at Large are unconstitutional as in violation of Art. I, §1; and as outside the scope of the enumerated powers. An amendment such as Natelson proposes is a grant of constitutional power to federal executive agencies to make Laws.

Supreme Court Opinions: This shows why Roe v. Wade is unconstitutional. This shows why the opinions banning Christian speech in the public square are unconstitutional. The remedy our Framers advised for such usurpations is impeachment and removal from the Bench (Federalist No. 81, 8th para), and nullification by the States of unconstitutional opinions [link].

Natelson cannot produce any writing from a Framer which says that when the Supreme Court violates the Constitution, the remedy is to amend the Constitution. Our Framers were not silly men. And what would such an amendment as Natelson proposes say? That federal judges must obey the Constitution? Article VI already requires that. Does Natelson propose amendments which list the subjects on which federal courts may not act? But Art. III, §2, cl. 1 already lists the kinds of cases they may hear. But we ignore those existing limitations.

Term limits amendment: If we learned anything from the last election, it should be that we will not in the foreseeable future have an honest federal election. With H.R.1, Congress is likely to attempt to “legalize” the unconstitutional shenanigans which enabled the theft of the last election. So your vote won’t matter!

But even if we had honest federal elections, consider this: As you decrease the powers of elected members of Congress by making them transient beings – you increase the powers of the “deep state”. With term limits, elected members of Congress would become like train cars passing in the night – the power would be solidified in the nameless, faceless, un-elected bureaucrats who infest the Executive Branch.

Anyone who analyzes the amendments proposed by COS and their allies can see that their amendments increase the powers of the federal government by delegating powers already usurped, granting new powers, or stripping States of their existing powers. See: ‘Mark Levin’s “Liberty” Amendments: Legalizing Tyranny’ [link]; ‘COS Project’s “simulated convention” dog and pony show and what they did there’ [link], & ‘The “Regulation Freedom” Amendment and Daniel Webster’ [link].

4. Amendments to “prevent federal abuse” can backfire!

When amendments correct defects in the Constitution, they are clearly a good thing. The 12th & 13th Amendments, like the 11th Amendment, corrected defects in the Constitution. Section 1 of the 14th Amendment extended Citizenship to the freed slaves and provided constitutional authority for the much needed federal Civil Rights Act of 1866.

But amendments added to prevent federal abuses backfired. In Federalist No. 84 (10th para), Alexander Hamilton warned against adding a Bill of Rights to our Constitution. Under a Constitution of enumerated powers, the government may lawfully do only what the Constitution permits it to do. So

“…why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? … it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power...” [emphasis mine]

But Hamilton’s warnings were brushed aside.

Beginning in the 1920s, Justices on the Supreme Court – who were “disposed to usurp” – fabricated a doctrine under which they claimed that §1 of the 14th Amendment “incorporated” various parts of the first 8 Amendments so that those Amendments restricted the States! This how the Supreme Court usurped power to dictate how the States must apply the Bill of Rights. As shown here (at 12. & endnote 4), this is the theory the Supreme Court used to ban Christian speech from the public schools and County courthouse lawns.

Throughout the years, the Supreme Court has extended its “incorporation doctrine” to dictate to the States how they must apply the 1st, 2nd, 4th, 5th, 6th, and 8th Amendments [link].

Furthermore: Amendments usher in implementing federal statutes and executive agency regulations – and judicial power over the subject of the Amendment becomes vested in the federal courts. Article III, §2, cl.1, says, “The judicial Power shall extend to all Cases … arising under this Constitution …”

Beware of what you ask for.

5. Natelson’s assurances that a convention would consist of “state delegations” sent “to propose pre-specified amendments” are false and reckless in the extreme 2

Natelson presents nothing to support his assurances. He can’t because his assurances are contradicted by the Constitution; and by the federal “amendments” convention of 1787, which is our sole historical precedent for a federal convention called by a Congress to address our federal Constitution.

Article V, US Constit., says:

The Congress, whenever two thirds of both Houses shall deem necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing amendments…” [italics added]

Article I, §8, last clause, US Constit., says Congress shall have the Power…

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by this Constitution in the government of the United States, or in any Department or Officer thereof.” [italics added].

So Congress calls the convention and makes the laws necessary and proper to organize the convention.

The April 11, 2014 Report of the Congressional Research Service [link] shows that Congress recognizes that Article V grants to Congress exclusive authority to set up a convention:

“Second, While the Constitution is silent on the mechanics of an Article V convention, Congress has traditionally laid claim to broad responsibilities in connection with a convention, including (1) receiving, judging, and recording state applications;(4) determining the number and selection process for its delegates…” (page 4).

So Congress has the power to receive and judge the applications; how to count the applications, which ones to count, whether to aggregate the different forms of applications, etc.

Nothing in the Constitution permits State Legislatures to dictate amendments to be considered. The convention is the deliberative body.

Nothing in the Constitution requires Congress to permit States to select Delegates. Congress – the same Congress which Natelson tells us is “abusive”, “mendacious” and “revels in its power”- has the power to select the Delegates. Congress may appoint themselves as Delegates. 3

6. The People have the power to take down and set up governments

The push for an Article V convention is a hoax. The Globalists who stole the Election want a new Constitution. They are using “getting amendments to rein in the federal government” as a pretext for getting a convention where a new Constitution is sure to be imposed. Madison expressly warned of this stratagem [link].

Our Declaration of Independence is part of the “Organic Law” of our Land. It recognizes that The People take down and create governments. When Delegates meet in convention to address a Constitution, they are the Sovereign Representatives of The People. They cannot be controlled by the “creatures” of Constitutions previously ratified by the People [link].

In Federalist No. 40 (15th para) James Madison invoked the “transcendent and precious right” of a people to throw off one government and set up a new one as justification for the Delegates to the federal “amendments” convention of 1787 ignoring their instructions to propose amendments to the Articles of Confederation, and instead writing a new Constitution with its own easier mode of ratification.

Accordingly, even if the “abusive” and “mendacious” Congress doesn’t “revel in its power” to appoint Delegates, but graciously permits States to select Delegates, State Legislatures have no competent authority to control Delegates at a convention called by Congress pursuant to Article V. The Delegates, as Sovereign Representatives of The People, have the power to eliminate the federal & state governments! 4

Heed the warning of the great statesman Daniel Webster:

“The politician that undertakes to improve a Constitution with as little thought as a farmer sets about mending his plow, is no master of his trade. If that Constitution be a systematic one, if it be a free one, its parts are so necessarily connected that an alteration in one will work an alteration in all; and this cobbler, however pure and honest his intentions, will, in the end, find that what came to his hands a fair and lovely fabric goes from them a miserable piece of patchwork.” Daniel Webster, 4th of July Oration, 1802.

Endnotes:

1 In a speech Natelson gave on Sep. 16, 2010 [link at top of p. 2], he said he would no longer call what he wanted a “constitutional convention”; but would ‘put our concepts on “reset” ’ and henceforth call it a “convention of states”.

2 Noted conservative constitutional litigators and law professors William Olsen and Herb Titus have already recognized that COS’s “false assurances” are “reckless in the extreme” [link].

3 Page 40 of the CRS Report says it’s been recognized that there doesn’t seem to be any “… constitutional prohibition against [U.S.] Senators and Representatives serving as delegates to an Article V Convention..”

4 The proposed Constitution for the Newstates of America [link] does just that. Article XII, §1 provides for ratification by a referendum called by the President. Do YOU trust the voting machines?

Publius Huldah: A Constitutional Roadmap for Conquering Election Fraud

Attorney Publius Huldah writes A Constitutional Roadmap for Conquering Election Fraud.

The following shows what the State Legislatures and each Branch of the federal government have the authority to do to address the monstrous crime which has been committed against our Country.

1. Article IV, §4, US Constitution

The fundamental Principle which should guide us in dealing with this issue is set forth at Article IV, §4, US Constitution. It reads,

“The United States shall guarantee to every State in this Union a Republican Form of Government…”

The essence of a “Republic” is that sovereign power is exercised by Representatives elected, directly or indirectly, by The People. 1

Election fraud strikes at the heart of our Constitutional Republic. Therefore, Congress, the federal courts and the Executive Branch [i.e., the “United States”] have the duty, imposed by Article IV, §4, to negate the fraud in order to preserve our republican form of government.

As shown below, the States also have authority to remedy the election fraud committed in their State.

2. The Constitutional framework governing federal elections

These are the clauses in the US Constitution everyone should study:

♦ Art. I, §4 is the “times, places, and manner” clause: It means what it says! Federal and State judges, and federal and State executive agencies, have no authority to tinker with election laws made by the State Legislatures or Congress. When they tinker with the laws, their acts are usurpations and must be treated as such [link].

♦ Art. II, §1, clause 2: The President & Vice President are to be elected by Electors appointed, in such manner as the State Legislatures shall direct…

♦ Art. II, §1, clause 4: Congress may determine the Time of chusing the Electors and the Day on which they Vote.

♦ The 12th Amendment sets forth the procedures for how the Electors are to cast their votes for President & then for Vice President. To our detriment, we have ignored those procedures for a long time.

♦ The 20th Amendment, §1, says the terms of President & Vice President end January 20; and the terms of Senators & Representatives end January 3.

♦ And §2 of the 20th Amendment says Congress shall meet on January 3, unless they make a law setting a different date. Congress did make a law which changed that date to January 6.

3. The Statutory framework

At Title 3, US Code, §§ 1-21 [link], Congress implemented the constitutional provisions.

Congress understood there would be fights in the States over the selection of the Electors. So they provided for the fights:

A.

At 3 USC §1, Congress set November 3 as the date for appointing the Electors in the States.

But the next two Sections address what happens when Electors aren’t appointed on November 3.

♦ §2 says the Electors may be appointed on a subsequent day in such a manner as the Legislature of each State may direct.

♦ And §3 says Electors are chosen when any controversy respecting their appointment has been finally determined. “Determining the controversy” is, of course, the purpose of the litigation and the hearings in State Legislatures.

B.

Article II, §1, clause 4, US Constit., gives Congress authority to determine the Date on which the electors vote:

♦ 3 USC §7 sets that date for December 14.

♦ But 3 USC §§12 & 13 provide for what happens when Congress hasn’t received the Electors’ votes by December 23.

So we see that flexibility to deal with fights in the States over the selection of Electors is built into the US Code.

C.

Now we get to the counting of the Electors’ Votes in Congress: 3 USC §15 says Congress is to meet on January 6 to count the votes. The President of the Senate [Mike Pence] presides. He is to call for objections to the votes. The rest of §15 and §§16-18 deal with handling the objections in Congress respecting the Electors’ votes.

So the statutory framework recognizes that selecting the Presidential Electors can get messy; and that there would be fights over the Electors in the States and in Congress. We are working through this process right now.

4. Congress has the power to determine whether the President elect and Vice President elect are qualified for office.

Section 3 of the 20th Amendment shows that Congress has the authority to determine whether the President elect and Vice President elect are qualified for office. 2 If either is not a natural born citizen, Congress has the power and the duty to disqualify that person. 3 Accordingly, it was Congress’ duty to inquire into whether Obama was a natural born citizen; and today it is Congress’ duty to inquire into whether Kamala Harris is a natural born citizen.

Congress also has the power – and the duty – to disqualify Biden and Harris on the ground that the fraud bringing about their sham “election” was an attack on the States’ Right, guaranteed by Article IV, §4, to have a republican form of government.

5. Election Fraud is a federal crime

It is the DUTY of the Department of Justice to investigate and prosecute the election fraud. It is disgraceful that they have done nothing.

6. The Duty of the Supreme Court

The Supreme Court is surely aware of its Duty, imposed by Article IV, §4, US Constitution, to guarantee to the States a republican form of government where Representatives are elected by The People – and not by corrupt politicians who pay for massive organized election fraud and cheating.

While the Supreme Court obviously cannot enforce its own rulings and must depend on the Executive Branch of the federal government to enforce them; 4 the Supreme Court must issue an Opinion consistent with Article IV, §4, which, when enforced by the Executive Branch of the federal government, solves the present crisis.

7. The State Legislatures should appoint replacement Electors

It is clear that State Legislatures have the power to ignore the fraudulent election and appoint a new set of Presidential Electors. Such is consistent with the Constitution and the statutory scheme laid out in 3 USC §§1-21. Furthermore, the Supreme Court has already acknowledged that State Legislatures may do this.

REMEMBER that Article II, §1, clause 2, US Constitution, says Electors are to be appointed “in such Manner as the State Legislatures” may direct.

Originally, Electors were generally chosen by the State Legislatures. In McPherson v. Blacker, decided 1892 [link], the Supreme Court gave the history of how each State Legislature chose their Electors since the first presidential election. It was only later that State Legislatures began to provide for the popular election of the Presidential Electors.

Congress expressly recognizes that State Legislatures may resume at any time the power to select the Electors. Remember that 3 USC §2, says,

“Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”

Additionally, in Bush v. Gore, decided 2000 [link], the Supreme Court said that the State Legislature’s power to select the manner for appointing electors is plenary; it may, if it chooses, select the Electors itself; and even after granting the franchise to the People to select the Electors, State Legislatures can resume the power at any time.

So yes, in States where the election was stolen, the State Legislatures may – and should – reassume their plenary power to select the Electors. America urges the State Legislators to be bold and do what is right.

8. Warning

Republican establishment cowards who refuse to confront and defeat the election fraud don’t seem to understand the consequences of their refusal to man up and fight the fraud. Our Country is right now in the process of being overthrown and taken over by profoundly evil people. You better fight while we still can.

Endnotes:

1 Federalist No. 10 (J. Madison) [link]: “A republic, by which I mean a government in which the scheme of representation takes place, … *** … The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; …”

2 The qualifications are set forth at Article II, §1, clause 5 and the 12th Amendment, last sentence.

3 Whether or not a President elect or Vice President elect meet the constitutional qualifications for office is a political question for Congress to decide.

4 Federalist No. 78 (A. Hamilton) [link] “…The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” [Caps are Hamilton’s; other emphasis added]

Publius Huldah: Mail-in voting? A “political question” which only State Legislatures and Congress may decide

Publius Huldah opines on the legalities of mail-in voting. Mail-in voting? A “political question” which only State Legislatures and Congress may decide

It has become obvious that one of the purposes of the COVID-19 scam is to bring about unrestricted mail-in voting in the toss-up and Red States so that the upcoming presidential election can be stolen by the Left for the senile Joe Biden and his constitutionally ineligible running mate, Kamala Harris.

On September 9, 2020, the Left achieved their goal for the Red State of Tennessee – unless the Tennessee State government enforces the US Constitution and rejects the federal judge’s unconstitutional order.

1. The absurd Order from the US District Court, Middle District of Tennessee

The Tennessee Code permits mail-in voting for certain categories of people [Tenn. Code § 2-6-201]; but requires those who register by mail to appear in person at the official place of voting and bring proof of identity when they vote for the first time [Tenn. Code § 2-2-115 (b) (7)].

Our elections are already tainted by the “ghost voters” described in Deroy Murdock’s article (published 2017) [here]. Murdock showed that throughout the United States, over 3.5 million persons who didn’t exist were registered to vote. But that number wasn’t sufficient to elect Hillary Clinton; so the Left needs more ghost voters. With mail-in voter registration, dead people can be registered to vote; and with unrestricted mail-in voting, those dead people can vote forever.

The Plaintiffs in this action claim to be distressed about the statutory requirement that first-time voters (who registered by mail) appear in person to vote because it forces them to choose between their “health” [they might catch COVID-19 if they go to the polls] and their right to vote. 1

On September 9, 2020, federal judge Eli Richardson issued a preliminary injunction which has the effect of setting aside, for the upcoming presidential election, the statutory requirement – established by the Tennessee Legislature – that persons who registered by mail, show up in person the first time they vote.

Here is Richardson’s 29 page Order.

So let’s cut 29 pages of bunk down to its essence: Richardson ruled that the Tennessee Legislature’s requirement that the first-time voters (who registered by mail) physically appear at the polls, imposes a “moderate burden” on voting rights; and the State failed to show the Court that Tennessee has a “legitimate state interest” to justify that burden. 2

Even worse: Throughout his Order, Richardson writes repeatedly [some 20 times] of Plaintiffs’ “First Amendment right to vote”; and says at the end of para 31 of his Order,

“…it is likely that Plaintiffs will prevail on their claim that the first-time voter requirement violates the First Amendment right to vote…”

But the First Amendment makes no mention of a “right to vote”. 3 Furthermore, in footnote 22 of his Order, the Judge says:

“In a prior order, the Court declined to address any suggestion that there is no First Amendment right to vote, for any purposes at all, by mail in particular… The Court was well aware that McDonald supports such a suggestion, but the Court simply did not need to opine on that matter. The Court likewise does not need to do so here…”

What? The Judge declined to address whether or not a First Amendment right to vote actually exists even though he has already determined that Plaintiffs are likely to prevail on their claim that the requirement that first-time voters (who registered by mail) show up in person to vote “violates the First Amendment right to vote”!

2. Why do Plaintiffs and the Judge repeatedly speak of a “First Amendment right to vote”, when the Judge isn’t prepared to say that such a right even exists?

They may be aware that the federal court has no jurisdiction over this case; but are attempting to fake it by claiming that the case “arises under the Constitution” via the First Amendment.4

The judicial power of the federal courts is limited to those few categories of cases enumerated at Article III, §2, clause 1, US Constitution. Not one of the categories invests the federal court with jurisdiction over this case. This case can’t be said to “arise under the Constitution” because there is no “right to vote” in the US Constitution; and the remaining categories listed in Article III, §2 are clearly inapplicable.

So it appears that Plaintiffs have fabricated a mythical “First Amendment right to vote” in order to provide a pretext for the federal court to exercise jurisdiction in this case – and that the federal judge let them get away with it.

3. Article I, §2, clause 1, US Constitution, negates the absurd claim that there exists a federal constitutional right to vote.

At Article I, §2, cl. 1, the States expressly retained their pre-existing power to determine the qualifications of voters:

“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” [italics added]

Accordingly, those who are eligible to vote for Representatives to their State Legislature are the ones eligible to vote for Members of the federal House of Representatives. 5

With four later Amendments, the States agreed that they would not deny eligibility to vote to Citizens on account of race (15th Amendment), sex (19th Amendment), failure to pay a tax (24th Amendment), and for those 18 years of age or older on account of age (26th Amendment). It is important to note that these four amendments do not grant the “right” to vote to the persons described in the Amendments – merely that the suffrage will not be denied to those persons on account of their race, sex, etc.

So the States retained their original authority to set whatever qualifications for voting they deem appropriate, subject to their agreement that they would not deny suffrage on account of a Citizen’s being in one of those four categories.

So there is no “right to vote” set forth in the US Constitution. To the contrary, voting is a privilege granted or denied on the basis of whether applicants meet the qualifications for voting set forth within their State Constitution. 6

4. What does our Constitution say about how the President and Vice President are to be elected?

Article II, §1, cl. 2 and the 12th Amendment set forth the procedures for electing President and Vice President. Those procedures are described here under the subheadings, “Electors appointed by States were to choose the President” and “The 12th Amendment establishes procedures for voting by Electors”.

Our current procedures bear no resemblance to the Constitutional requirements. 7 It’s too late to obey the Constitution for the upcoming presidential election; so let’s see what our Constitution says about the federal elections to Congress.

5. US Constitution: the “times, places and manner” clause

Pursuant to Article I, §4, clause 1, State Legislatures have the power to prescribe the Times, Places and Manner of holding Elections for US Representatives 8 and US Senators.9

This clause also provides that Congress may make laws which override such State laws.

So the power to determine the time, place and manner of holding such federal elections is delegated exclusively to the Legislative Branches of the State and federal governments.

It is up to the State Legislatures to decide which “burdens” are appropriate with respect to the place of voting – with Congress having power to override what a State Legislature decides. The Judicial Branches of the state and federal governments may not substitute their views as to which “burdens” are appropriate and which are not. These are “political questions” granted to the Legislative Branches to decide; and the Judicial Branches – state and federal – may not lawfully interfere. 10

It is clear that “manner of voting” includes such matters as a requirement of personal presence at the place of voting. This is what our Framers contemplated, as shown by their words quoted in footnote 8 below. When a State legislature decides that personal presence is required – that decision can be overturned only by Congress.

So Judge Richardson’s view that the Tennessee Legislature doesn’t have a good reason for requiring first time voters (who registered by mail) to vote in person and present ID is irrelevant, and his Order is ultra vires.

6. What is the State’s remedy against the unlawful Court order?

So! You have seen that determining the “place and manner of voting” is a political power delegated exclusively to the State and federal Legislatures. It is thus a “political question”; and the federal [and state] Judicial Branches may not substitute their views for those of the Legislative Branches.

And since there is no “right to vote” contained in the US Constitution, the Federal District Court has no jurisdiction over this case. This case doesn’t “arise under the Constitution” or fit within any of the other categories of cases enumerated at Article III, §2, cl.1, US Constitution.

So the pretended Order of September 9, 2020, is ultra vires and lawless, and the State of Tennessee has no obligation to obey it.

The duty of the elected and appointed State and local officials is to obey the US Constitution. When the dictates of a federal [or State] judge contradict the Constitution, State officials must side with the Constitution and against the judge. 11

And what will happen if the State of Tennessee refuses to comply with the Judge’s order? The Judge can’t enforce his Order. He has to depend on the Executive Branch of the federal government to enforce it. 12 Do you believe that President Trump will send in federal troops to force the State of Tennessee to comply with Judge Richardson’s ultra vires Order?

Note:  In addition to the Offices of President & Vice-President, many other offices will also be on the Ballot:  the entire US House of Representatives is up for grabs.  So is the House in the State Legislatures all over the Country.  1/3 of the US Senate will be on the ballot; and a proportional number of Senate Seats on State Legislatures throughout the Country will be on the ballot.

EVERY REPUBLICAN LEGISLATOR NEEDS TO UNDERSTAND:  Your Seat is likely to be stolen in this upcoming election.

So you better wake up and get your State Legislature to smack down the federal & state judges who are assisting the Left in stealing your Seat.  And if Congress doesn’t act, they will lose control of the Senate and most likely every seat in the House.

Why should the Left stop with stealing only the Presidential election when they can also steal YOUR seat?

Endnotes:

1 How do they get their groceries?

2 Order at paras 29 – 31.

3 The First Amendment says,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment is a limitation on Congress’ powers to make laws – it doesn’t grant a “right” to vote!

4 In Federalist No. 80 (2nd para), Hamilton states that cases “arising under the Constitution” concern

“…the execution of the provisions expressly contained in the articles of Union [the US Constitution]…” [boldface added].

In the 3rd & 13th paras, Hamilton illustrates what “arising under the Constitution” means: He points to the restrictions on the power of the States listed at Art. I, §10 and shows that if a State exercises any of those powers, and the fed. gov’t sues the State, the federal courts have authority to hear the case.

5 The 17th Amendment [ratified 1913] provides that those who are eligible to vote for Representatives to the US House are eligible to vote for US Senators.

6 With the National Voter Registration Act of 1993, Congress usurped the retained power of the States to set and enforce eligibility standards for voting. In a series of 3 papers, the last of which is here, I show how the assertions about The Federalist Papers made by the 9th US Circuit Court of Appeals and the Supreme Court, in their attempts to justify their unconstitutional judgments, are false.

7 Our disregard of these constitutional provisions doubtless contributed to the creation of the current chaos.

8 Our Framers told us what “times”, “places” and “manner” mean:

In Federalist No. 61 (4th & 5th paras), Alexander Hamilton shows that “Time” refers to when elections are held. He explains that under the Articles of Confederation [our 1st Constitution], States had been conducting elections from March to November; and that uniformity in the time of elections is necessary “for conveniently assembling the [federal] legislature at a stated period in each year”.

“Place”: Hamilton also points out that the suffrages of citizens living in certain parts of the States could be defeated by restricting the place of election for Representatives in the House to “an INCONVENIENT DISTANCE from the elector” (2nd para). [caps are Hamilton’s].

“Manner” of holding Elections refers to such things as paper ballots or show of hands, the place of voting, and whether the States will be divided into congressional districts for purposes of electing Representatives. James Madison discusses the “Manner” of holding Elections in The Records of the Federal Convention of 1787, vol. 2, August 9, 1787:

“Mr. Madison: … the Legislatures of the States ought not to have the uncontrouled right of regulating the times places & manner of holding elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot or vivâ voce, should assemble at this place or that place; should be divided into districts or all meet at one place, shd all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures and might materially affect the appointments …. what danger could there be in giving a controuling power to the Natl. Legislature? Of whom was it to consist? 1. of a Senate to be chosen by the State Legislatures … 2. of Representatives elected by the same people who elect the State Legislatures…” [emphasis added]

Rufus King in the Massachusetts Convention said in The Records of the Federal Convention of 1787, vol. 3, January 21, 1788:

“Hon. Mr. King rose … It was to be observed, he said, that in the Constitution of Massachusetts, and other States, the manner and place of elections were provided for; the manner was by ballot, and the places towns; for, said he, we happened to settle originally in townships…” [emphasis added]

9 When Art. I, §4, cl. 1 was drafted, the State Legislatures were to choose the State’s Senators to the US Congress – so the “place” of choosing the US Senators would be wherever the Legislature met. With ratification of the 17th Amendment, Congress gained oversight over State laws addressing the “place” of election of US Senators.

10 In Marbury v. Madison [link], decided 1803, the Supreme Court explained the concept of “political powers” and that the manner in which political powers are exercised is beyond the reach of the courts:

“By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. …whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive … [and] can never be examinable by the Courts.”

Marbury addresses the political powers exercised by the President. That same deference to the exercise of political powers has long been extended to the acts of the other political branch, Congress. Where the Constitution grants a political power to Congress, the manner in which Congress exercises the discretion is also beyond the reach of the Courts. So, for example, if Congress were to exercise the power granted to it by Article I, § 4, clause 1, to make a law banning mail-in voting; its action can never be examined by the Courts – the Courts may not substitute their views for those of Congress.

11 Marbury v. Madison also stands for the Great Principle that when an Act of one branch of government violates the Constitution, the other Branches must obey the Constitution and not the unlawful Act.

12 Alexander Hamilton made this same point over 200 years ago – see Federalist No. 78 (6th para). If law schools had made The Federalist Papers required reading, our Country wouldn’t now be in such a mess

Publius Huldah: Constitutional Methods for the Fed Gov to “call forth the Militia” to Suppress Insurrections

Publius Huldah has a good, short article on the Constitutional underpinnings of the militia and origin of the National Guard in Our Constitution provides two separate & independent methods for the federal government to “call forth the Militia” to suppress Insurrections

Because of its excellence and relevance to the insurrections being fomented in our cities by the Marxist organization “Black Lives Matter”, Antifa, and other revolutionary organizations; I sent the recent paper by Edwin Vieira, JD., Ph.D., titled, “The President’s Authority To Suppress Insurrections” [link], to my lists.

In response, some objected that the riots in the cities are local issues to be handled (or not) by the State and local governments – that they are not “federal” issues over which the federal government has jurisdiction. Some also asserted that Article IV, §4, US Constitution prohibits the President from sending the National Guard into a State to quell such disturbances, unless & until the Legislature or the Governor of the State requests it.

Those objections are not well-founded.

First: What’s going on in our cities is not something which can be prudently brushed aside. It is a classic manifestation of a Marxist revolution – see, e.g., this article from “Workers’ World”. Furthermore, as shown below, the President of the United States has constitutional and statutory authority to exercise his own judgment as to whether he should send in the “Militia” to suppress the uprisings.

Second: Our Constitution provides two separate and independent methods for the federal government to suppress such uprisings.

Dr. Vieira’s paper sets forth the other method of “calling forth the Militia” – the method provided for at Article I, §8, clauses 15 & 16, US Constitution. That provides for the intervention of the Militia within a State at the initiative of the federal government, regardless of whether the State requests it. 1

When highly knowledgeable and experienced persons, such as Dr. Vieira, speak in their area of expertise, and their words contradict our existing beliefs; we ought to re-examine our beliefs, instead of dismissing what such persons say. 2

So let’s review Article I, §8, clauses 15 & 16, and some of the early Acts of Congress implementing them.

1. The American Militia is 400 years old

Throughout our colonial period, able-bodied free males were expected to be armed and trained and ready on short notice to defend their home, family, neighborhood and Colony. They were the “Militia”. In Mel Gibson’s movie, Patriot, Gibson’s character commanded a South Carolina Militia Company. The Militia was not “regular Army” – it was comprised of farmers, pastors, shopkeepers, etc., trained in the use of arms and prepared to fight for defense of Family and Community.

In our Constitution of 1787, our Framers provided for a regular Army and Navy at Article I, §8, clauses 12, 13 & 14. Pursuant to Article II, §2, clause 1, the President is Commander in Chief (CINC) of the Army and Navy. 3

Our Constitution also recognized the continued existence of the Militia, and assigned to it three specific federal functions: Article I, §8, clause 15 empowers Congress:

“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”. 4

Clause 16 authorizes Congress:

“To provide for the organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress”.

In 1792, Congress passed the Militia Act which “provided for” the arming of the Militia by requiring every able-bodied male Citizen of the ages 18-45 (with a few exceptions) 5 to acquire a rifle, bayonet, ammo pouch, ammo, 6 and report to his local unit for training. HERE is the Militia Act of 1792.

When the Militia of a State isn’t in the service of the United States for one of the three purposes listed in Clause 15, its function is to help in its own State – however the need arises. And in Federalist No. 46, James Madison says the Militia is to defend the State from the federal government in the event it becomes tyrannical. 7

2. Who has the authority to call forth the Militia into service of the United States?

Article I, §8, clause 15 authorizes Congress to “provide for” calling forth the Militia “to execute the Laws of the Union, suppress Insurrections and repel Invasions”. How does Congress “provide for” calling forth the Militia into the service of the United States?

In Martin v. Mott, 25 US 19 (1827), the Supreme Court considered the Militia Act of 1795 [link] which authorized the President to call forth the militia when he judged it necessary to repel an invasion or enforce the laws of the United States. The Court pointed out that the power had been entrusted by Congress to the President, and said that,

“We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.”

So! In the Militia Act of 1795, Congress “provided for” calling forth the Militia by delegating to the President the power to determine when it was advisable to call the Militia into national service to repel an invasion or to execute the laws of the Union. 8

3. Transformation of the Militia into the federally controlled National Guard

During the early 1900s, Americans elected Progressives [Fabian socialists] to office. And these “Progressives” commenced the conquest of our Country. They had to eliminate the threat the Militia posed to the totalitarian federal government they intended to create. So with the “Efficiency in Militia Act of 1903” (the “Dick Act”) [link], Congress federalized the Militia. And this is how the Militia of the several States, which is the primary defense of a Free People and the States against a tyrannical federal government [2nd Amendment], was put under federal control. And the States went along with it because their People were ignorant, short sighted, and bought off with federal appropriations for the new federalized “National Guard”.

So we don’t have an organized & trained Militia – now, we have federal troops – some on active duty in the Regular Military; others as weekend warriors in the Reserves or National Guard.

4. Current Acts of Congress providing for calling forth the “Militia” (federal armed forces)

Today, the provisions of the US Code which address calling forth the “Militia” 9 into national service are: 10 USC §251, 10 USC §252, 10 USC §253, and 10 USC §254. Note that the President still has statutory authority to use his own Judgment respecting whether to send the “Militia” into any State:

♦ to enforce the Laws of the United States [10 USC § 252];

♦ to suppress uprisings which deprive the people of the rights, privileges and immunities, and protections recognized in the Constitution and secured by Law, and the State government isn’t protecting those rights [10 USC §253]; and

♦ to suppress uprisings which oppose or obstruct the execution of the laws of the United States or impede the course of justice under those laws [10 USC § 253].

5. Conclusion

Our Constitution is an elegant piece of work. Its parts are interconnected and fit together. So we must read each clause in the light shed by the other clauses and by the Principles of our Founding as set forth in our Declaration of Independence. We must never insert our own biases – no matter what they are.

One of the most valuable characteristics of our federal system is the ability of the state and federal governments to be “checks” on each other. In Federalist No. 28 (7th para), Alexander Hamilton says,

“… in a confederacy [10] the people … may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general [national or federal] government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. …”

We would be wise to celebrate the President’s constitutional and statutory authority to protect us from the death and destruction being brought about – with the connivance of State & local officials – by the Marxist revolutionaries. When State and local governments refuse to protect their people from such death and destruction, the President has a clear power to intervene.

Now, we must start electing Presidents who know and obey our Constitution. 11

Endnotes:

1 Our Framers thought of everything – including rogue State governments. See, e.g, Federalist No. 28.

2 One of the themes of Proverbs is that a wise man listens and increases his understanding. Be wise.

3 To be CINC means that the President has the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy (Federalist No. 69).

4 Let that clause sink in! Our Framers did not want a standing Army [go here and search for “standing armies”] – that’s why appropriations for the regular Army were limited to two years (Art. I, § 8, cl. 12). National defense, enforcement of federal laws, & suppressing Insurrections were to be the responsibility of the Militia. When the federal gov’t needs to enforce its laws, it is to call forth the Militia – the armed and trained Citizens – to do the enforcing! During the Washington Administration, the federal gov’t called forth the Militia to enforce the federal excise tax on whiskey. Federal law enforcement is thus the province of the Citizens – the Militia! It is most manifestly NOT the province of armed thugs in the employ of the Executive Branch of the federal gov’t.

5 Pursuant to §2 of the Militia Act of 1792, federal officers & employees were exempted from service in the Militia. Can you figure out why they were exempted?

6 The arms, ammunition and accoutrements so acquired by the Militia Man were his personal property and were held free from claims of all creditors. They could not be seized and sold in payment for any judgments, debts or taxes. See last sentence of §1 of the Militia Act of 1792.

7 This is why Article II, §2, clause 1 provides that the President is CINC of the Militia only when it is called into national service. This is also why §2 of the Militia Act of 1792 exempts all federal officers and employees from service in the Militia.

8 The Militia Act of 1795 also provided that in cases of insurrection against a State government, the President could send in the Militia upon request of the State Legislature or Governor.

9 Even though we no longer have a “militia” within the meaning of Article I, §8, clauses 15 & 16; the current US Code uses the term in order to connect the activities of the federal armed forces with Art. I, §8, clause 15.

10 Our Constitution created a “federation” (“confederation”) of sovereign states which were united together for the sole purposes enumerated in the US Constitution.

11 I may have been wrong to fault President Trump for not sending the National Guard into the States to suppress the Insurrections.  In The Coming Coup? [link], Michael Anton writes:

“…It started with the military brass quietly indicating that the troops should not follow a presidential order. They were bolstered by many former generals—including President Trump’s own first Secretary of Defense—who stated openly what the brass would only hint at. Then, as nationwide riots really got rolling in early June, the sitting Secretary of Defense himself all but publicly told the president not to invoke the Insurrection Act. His implicit message was: “Mr. President, don’t tell us to do that, because we won’t, and you know what happens after that.”

If that is true, then the President ought to fire Defense Secretary Mark Esper, and should “purg[e] the [military] officer corps of anyone not down with the program and promoting only those who are.”