Individual Rights wrapped in the States Rights I. The Bill of Rights was restrictions on the Federal Government, but never were they meant to be restrictions on the State Legislatures. 1) Baron Vs. Baltimore 1833 - Chief Justice John Marshall wrote the majority decision for Barron vs. Baltimore. Justice Marshall was born in 1755, and died in 1835, just two years after writing the majority decision on this case. This means he was 21 in that monumental year in American history, 1776. He was licensed to practice law in Virginia in 1780, after the State had Declared Independence, yet still in Rebellion against the Crown. He was elected to the Virginia House of Delegates in 1782, and 84. Thus, I am arguing, 1833 being the 83rd, year of his life, having gone through the Revolution, served with the most able men of the Founding Fathers, he is more than qualified to tell us the fundamental role of the Bill of Rights in the U.S. Constituent. Justice Marshall was appointed by the Federalist John Adams, to the Supreme Court in 1801. Justice John Marshall, being a Federalist like Adams, was a strong supporter of a larger central government than the Anti-Federalists of his day. In the case; Barron vs. Baltimore, the Plaintiff, John Barron, claimed that the city of Baltimore had deprived him of 5th amendment rights. The 5th amendment guarantees just compensation, “nor shall private property be taken for public use, without just compensation”. John Barron ran a busy dock in the Baltimore harbor, he claimed the city dumped sand from road construction that made the water around his dock to shallow for many vessels to dock, thus costing him business. He won his first lawsuit in State court, then an appellate court rescinded the decision and he lost. His next step was to take his case to the Federal level. The Federal Courts decision on this case was unanimous. Not one judge dissented. They never even listened to the arguments by the city of Baltimore, because it was such a well-established fact in 1833 that the Bill of Rights was not restriction on the States that it was not even a case to hear. Justice John Marshal writes, “The plaintiff in error contends, that it comes within that clause in the fifth amendment to the constitution, which inhibits the taking of private property for public use, without just compensation. He insists, that this amendment being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state, as well as that of the United States. If this proposition be untrue, the court can take no jurisdiction of the cause.” Marshall, in the majority decision, comments on the simplicity of this case, “The question thus presented is, we think, of great importance, but not of much difficulty.” – Chief Justice Marshall, who was a Federalist, advocating strong central government saw this case as a “no-brainer”, on the subject of Federal overreach of power, if Supreme Court intervened in this case. What would they think of the Federal abuse of power today? The U.S. of today is not even close to the blueprint of the founders! This reveals, 1) the fundamental lack of understanding of original intent in our present generation, and 2) That our government is way out of Constitutional boundaries today, as opposed to the days of the founders. When election time comes, no one ever watches a Presidential debate and asks of the subjects being debated, “Are these powers delegated to the General Government by the States in the constitution, and if so, where?” Chief Justice Marshall writes emphatically, “If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.” He then comments on the State Constitutions, and individual liberty in them, the State governments being limited by their own Constitutions. “In their several constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.” He goes on to write, this very thing, State Sovereignty, was the fundamental reason the American Revolution was fought “But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not affected without immense opposition. Serious fears were extensively entertained, that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government-not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.” - Most Americans are unable to identify America’s fundamental cause in the war for Independence The Conclusion of the matter, “We are of opinion, that the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use, without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states. We are, therefore, of opinion, that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that state, and the constitution of the United States. This court, therefore, has no jurisdiction of the cause, and it is dismissed.” (see, laws.findlaw/us/32/243.html) 2) Thomas Jefferson’s correspondence with the Danbury Baptists. The context of this correspondence between Jefferson and the Danbury Baptist of Connecticut is Freedom of religion, The letter reads, beginning the second paragraph, “Our sentiments are uniformly on the side of religious liberty: that Religion is at all times and places a matter between God and individuals, that no man ought to suffer in name, person, or effects on account of his religious opinions, that the legitimate power of the civil government extends no further than to punish the man who works ill to his neighbor.” Here, the Baptists make some general statements regarding their faith, and “separation of church and State”. Primarily, it’s the duty of civil government to punish actions, not opinions. That would be so much the more when it’s religious opinion. The letter goes on, now they discuss the local law of Connecticut, “But sir, our constitution of government is not specific. Our ancient charter, together with the laws made coincident therewith, were adopted as the basis of our government at the time of our revolution. A such has been our laws and usages, and such still are, so that Religion is considered as the first object of Legislation, and therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights. And these favors we receive at the expense of such degrading acknowledgements, as are inconsistent with the rights of freemen”. While discussing local law, they acknowledge that on the State level, even after the Revolution, the Baptists of Connecticut are deprived God given “inalienable rights”, that even the Declaration of Independence says belongs to all men. Even though this is true, they go on to recognize the Federal principle of State Sovereignty, the restricted power of the Federal government, having all delegated power enumerated in the Constitution. They understand that the Bill of rights did not apply to the States, they write, “Sir, we are sensible that the President of the United States is not the National Legislator and also sensible that the national government cannot destroy the laws of each State” If they knew the President, nor the congress had no authority to legislate for Connecticut on a matter altogether domestic, then why write him? Influence, “ but our hopes are strong that the sentiment of our beloved President, which have had such genial effect already, like the radiant beams of the Sun, will shine and prevail through all these States- until hierarchy and tyranny be destroyed from the earth.” (see, Letter of Oct. 7, 1801, from Danbury (CT) Baptist Assoc. to Thomas Jefferson, in Thomas Jefferson papers, Manuscript Division, Library of congress) These men of Connecticut, in 1801, were deprived there most sacred inalienable rights, yet being strict Federalists, were content to wait on God to move the Legislator of Connecticut with the influence of Thomas Jefferson, rather than destroy the Constitution so that they could win the most sacred right of all, freedom of Religion. Jefferson’s response to them is pointed. He salutes the Danbury Baptists with a very warm greeting, “Gentleman, The affectionate sentiment of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist Association, give me the highest satisfaction” He agrees with them that religion is between God and man alone, and that the civil power of government reaches actions only, “Believing with you that religion is a matter which relies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with Sovereign Reverence that act of the whole American people which declared that their legislature would, “make no law respecting the establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in the behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments, which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.” In that section you read Jefferson famous, “wall of separation of church and State”, which was then, and is now a popular term among Baptists. Jefferson, in his kindness to them, was using their term. He ends his letter to them as follows, “I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious association, assurances of my high respect and esteem. Singed, Thomas Jefferson, Jan 1, 1802. Jefferson leaves silent the Federative principle in his response, because it is understood by him as it was written by the Danbury Baptists. At best he hints at it, “I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights,” (see, Letter of Thomas Jefferson in the writing of Thomas Jefferson, in Thomas Jefferson papers, Manuscript Division, Library of Congress) It is interesting to note, that this correspondence between Jefferson and the Danbury Baptists, would be cited in 1947, in the “Everson vs. Board of Education” case. Justice Black wrote of the majority opinion, “The First Amendment has erected a wall between church and State. The wall must be kept high and impregnable. We could not approve the slightest breach” While Justice Black pulls the “wall between church and State out of Jefferson’s letter, he is very content leave the core convictions of the Founding Fathers buried in the sands of time, echoed by the Danbury Baptists in, “Sir, we are sensible that the President of the United States is not the National Legislator and also sensible that the national government cannot destroy the laws of each State” Attorney David Gibbs of Christian Law Association comments on this, “In the Everson Case the Supreme court also held for the first time that the establishment clause of the first amendment applied to the individual States through the Due Process clause of the fourteenth amendment. Prior to this ruling, only the federal government had been constitutionally precluded from establishing a religion. It is this Supreme Court incorporation of the Establishment clause to State and local governments that now stands in the way of individual States passing legislation that favors religion. Were it not for this application, absent a similar prohibitive State law, local school districts could still permit prayers in public schools. (Understanding the Constitution, David Gibbs Jr., and David Gibbs III, Christians Law Association, p. 96) 3) The wording of the Document itself. The 1st Amendment reads, “Congress shall make no law respecting an establishment of religion, …” The question arrives from the obvious, “which Congress?” There were 13 original States, now 50, and one National Congress. Since the word Congress is in the singular, we are left with no other conclusion than the Federal Congress. This is the same document that reads, “We the People ..”, so we know exactly which congress. The individual State legislators had every constitutional right to pass laws on religion and the Federal government had not lawful authority to do anything about it! The original Bill of Rights are in to context of Individual Rights, and every one of them are restriction on the Federal Government, not the States. That is original intent. The 14th amendment changed this for everyone, not just recently freed slaves. 4) Thomas Jefferson: It is impossible to understand the southern mind without understanding Thomas Jefferson. Jefferson was the first person to lead nullification. Remember South Carolina and the Nullification crises? It was not new with SC. Thomas Jefferson was an “Anti-Federalist”, John Adams a Federalist. Jefferson’s party at this time was not called, “Anti-Federalist”, rather “Republican”, later, “Democrat-Republican”, and later, “Southern Democrat”. They all held the same principles but took on different names. A. The election of 1800: “It was in this State of popular feeling, and excitement and alarm for public liberty, that the Presidential election of 1800 took place. The Doctrines and principles of the Virginia and Kentucky Resolutions of 1798, and Mr Madison’s matchless Reports on those of Virginia in 1799, embodied the views of the Republican party everywhere” (A History of the United States, Alexander H. Stephens, American foundations, p. 278) During this election there was an “alarm for public liberty”, what caused the “alarm”? Also what were the “Doctrines and Principles of the Virginia and Kentucky Resolutions of 1798, and Madison’s reports on them? I want to answer these two questions, because these two questions would lead to the inevitable clash of 1861. B. Alarm for public liberty: John Adams was a one term President because his policies of centralizing the Government by the infamous, “Alien and Sedition Acts” passed Congress by his party in power. The result of those acts was devastating. “several persons of high character and known integrity were punished.” (A History of the United States, p 277). Matthew Lyon of Vermont was the first victim of the sedition Acts, He was indicted on the charge of writing in a Vermont Newspaper, concerning John Adams, and the Federalist party,”every consideration of the public welfare was swallowed up in a continual grasp for power, an unbounded thirst for ridiculous pomp, foolish adulation, and self avarice;”, in regard to the fast day he said, “the sacred name of religion had been used to make mankind hate and persecute each other”. The Federal Government, under control of the Federalists, charged him as, “false, scandalous, and malicious”, with an attempt to bring the President into contempt and disrepute” under the sedition acts. He was sentenced to four months imprisonment and a fine of a thousand dollars. Lyon was poor, and unable to pay the fine. A publisher of a newspaper published a plan to raise money to pay Lyon’s fine, but the publisher was indicted on the same charge and put in jail. While Lyon was in prison, he was again elected to Congress. He is and unsung American hero, poor, a member of the house, who looked tyranny in its eye in one of our very first Presidents, and referred to his speech as “King’s speech”, because he would not back down, he was singled out to face the wrath of John Adams. Yet this Vermont Yankee persevered and was re-elected from his cell. ( A History of the United Statesp.277) Thomas Cooper was imprisoned and fined, under the same act in the case of one named “Johnathan Robbins”. Thomas Cooper said of the Federal Government treatment of this case, it’s “without precedent, without law, and against mercy”, and as an act, “which the Monarch of Great Britain would have shrunk from” (A History of the U.S. p. 278) James T. Callendar was another imprisoned under the acts. His lawyer questioned the Constitutionality of these laws to which the Judge refused to hear them on the case. Jared Peck a Judge, and citizen of New York was another was imprisoned under the Acts. That is a little of the consequences of the Alien and Sedition Acts. It was in this context that the election of 1800 was held. The context of these Resolutions is of utmost importance. The context is individual liberty found in the first amendment as were violated by the party styled Federalist and John Adams. C) The Doctrines and principles of the Virginia and Kentucky Resolutions of 1798: These resolutions were given to combat the loss of liberty by an all-powerful central government, acting outside of its Constitutional power. These Resolutions were authored by Thomas Jefferson, and passed both State legislatures respectively. The context of these Resolutions is of utmost importance. The context is individual liberty found in the first amendment as were violated by the party styled Federalist and John Adams. The Virginia Resolutions are nullification resolutions. They nullified the Alien and Sedition Acts inside of the border of Virginia. These resolutions state that the only basis for Union is the Constitution and it’s faithful observance, “and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure its existence and public happiness. These resolutions used the word “compact” to describe the Federal Constitution, and that the Powers of the Federal Government are limited by that compact, and at any time that the Federal Government acts outside of the compact the States are duty bound to “nullify”, but to use the word of the Resolutions, “interpose”, for the purpose of “arresting the progress of the evil”. This section reads as follows, That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact to which the States are parties, as limited by the Plain sense of the and intention of the instrument constituting that compact, as no further valid than they are authorized by the grants enumerated in that compact, the States who are parties thereto, have the right, and are duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties, appertaining to them.” Thus, the Virginia Assembly, which included the most able statesmen America has ever produced, said, not only was it a “right”, but a “duty”, to interpose, for the purpose of arresting the evil of “Centralizing” the Federal Government. A right that can’t be defended is a pretended right, say Alexander H. Stephens. The term “States Rights”, implies the defense of those rights by the sword if necessary. Nullification is the first logical step before secession. Admitting Nullification as Constitutional right, also means to admit secession as a Constitutional right. Otherwise Nullification is of no use in resisting Tyranny. You can’t admit to one without admitting to the other. These Virginia Resolutions of 1798 confirm that Centralization of the National Government was occurring as early as 1798 by “construction”, i.e. taking words and phrases in the Constitution and expanding them beyond their constitutional meaning. The Resolutions read, “that the General Assembly doth also express it’s deep regret that a spirit has, in sundry instances been manifested by the Federal Government, to enlarge it’s powers by forced constructions of the Constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases, “which having been copied from the very limited grant of the Articles of Confederation, were less liable to be misconstrued) so as to destroy the meaning and effect of the particular enumeration which necessarily explains and limits the general phrases”, then they list the undesirable effect of “forced construction”, “to consolidate the States by degrees into one Sovereignty, the obvious tendency and inevitable result of which would be, to transform the present Republican system of the Unites States into an absolute, or, at best, a mixed Monarchy.” That day of Mixed Monarchy has come, but today, we are closer to absolute Monarchy than we are mixed. The Resolutions go on to list the charges against the infamous Alien and Sedition Acts. The Kentucky Resolutions are the same in principle, just with different wording. They began by laying the foundation, “That the several States of the United States of America are not united on the principle of unlimited submission to their General Government”. Once again, as the Virginia resolutions, the Kentucky resolutions taught the right and duty of Individual States to resist Usurpation of Federal power by the General Government shared by them. This was done by nullification, then if that was not honored by the Federal Government, secession would follow, then if secession not honored, the sword in defense of home was the last resort. After defining the Alien and Sedition Acts, the Kentucky legislator says of them, they, “are altogether void, and of no force”, and that the power to define and punish such crimes as the Alien and Sedition Acts did were reserved to the States! States’ Rights did not always involve domestic slavery, and this very early instance when it did not. (avalon.law.yale.edu/18th_century/virres.asp) D) Madison’s Reports on the Virginia Resolutions: James Madison’s reports simply confirm the Constitutionality of the Resolutions, confirming the right of nullification. James Madison, termed the Father of Constitution is qualified as anyone to comment on this issue. No one is more qualified, very few would equal Madison. In Madison’s reports, James Madison, and the Virginia legislature state what has was said Chief Justice Marshall. Marshall in Barrons vs. Baltimore said, “But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, …. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government-not against those of the local governments.” The failure for States to nullify unconstitutional Federal law, would be, “a plain denial of the fundamental principle on which our independence itself was declared” This is Madison’s comment on the third of the Virginia Resolutions, concerning centralization of Federal power by misconstruction of certain phrases in the U.S. Constitution. THE STATES ARE TO GUARD AGAINST THE ABUSES OF THE JUDICIAL BRANCH as much as any other branch of the Federal Government, Madison’s reports speaks on this, “The Resolution supposes that dangerous powers not delegated, may not only be usurped and executed by other departments, but the that Judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently, that the ultimate right of the parties to the Constitution(States), to judge whether the compact has been dangerously violated, must extend to violations by one delegates authority, as well as by another; by the Judiciary, as well as the Executive, or the Legislative.” Madison continues in the next paragraph, that if the ability to check the authority of the Federal Judiciary is not preserved, then freedom and the Constitution would be lost forever, “ Any other hypothesis, the delegation of the of Judicial power would annul the authority delegating it”. “Any other hypothesis”, is explained by the context, the hypothesis arrived at, that the States have a duty and right to arrest a Supreme Court that exercises undelegated power. If the States do not do this, Madison continues, “and the concurrence of this department with the others is usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution, which all were instituted to preserve.” The States are Sovereign, which means they are the final judge of the Constitutional compact, and every State has a right to judge for themselves breeches in the Federal Compact. The States individually hold authority over the Federal Court. The Federal Government was created to serve the States, the States were never meant to serve the Federal Government. A Boss delegates authority, and reserves it. A Boss reserves the right to take back any or all delegated powers when abused. The very language of the 10th amendment reveals where the final authority lies, humanly speaking, in the American political system. (tomwoods/blog/james-madison-states-need-recourse-against-courts/) ; (I regret that it’s very difficult to find actual copies of these documents online. Many people comment on them but few people trust the common man with them, it appears. I have the actual copy in my “Constitutional View of the Late War Between the States, by Alexander Stephens, …. This proves our ancestors had access to information the modern American’s do not, and it proves most historians would rather you read there commentary on history rather than read history) Many issues would touch this State Sovereignty issue, slavery was but one of them. Madison’s Reports list several issues in the report, but never mentions slavery. The centralists lost on every issue but eventually found one they sould win on, and even then the evidence points that for them, emancipation was not the goal, but destruction of the Federal principle. Emancipation was the by-product. A person may not agree with the principle, but who can deny that that was the principle? No one can. Dis-agreement, and historical facts are two different things. Anyone who does not know the facts concerning the election of Thomas Jefferson, does not understand the causes the led to the War Between the States. There is an “cause and effect” for everything. When a man in Grey fought for States Rights, he literally was fighting for of his God given inalienable rights. To deny this is to not understand original intent, or the times. States rights included the institution of slavery, but it was much more. It also included the right of that State to emancipate her slaves. States rights and slavery are not forever cemented together, but large central Government and Tyranny will be forever joined together. “All our Statesmen, of all parties had taught us, not only that the reserved rights of the States were the bulwarks of the liberties of the people, but that emancipation by Federal aggression would lead to the destruction of all other rights. A Clay as much as a Calhoun, proclaimed that when that when abolition overthrew slavery in the south it would equally overthrow the Constitution.” (A Defense of Virginia and the South, Sprinkle publication, Robert Louis Dabney, p. 352) Dis-agreement with this does not change the historical fact the individual liberty and States’ Rights were forever wedded together by the Founding Fathers. On the other hand, slavery was not forever wedded to the doctrine of States Rights, though it was defended on that ground. It is historically accurate, and legally accurate, that when an average Confederate soldier said, “I’m fighting for my rights”. He literally was.
Posted on: Thu, 27 Nov 2014 01:11:07 +0000
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