By Jeff Lewis, National Director, Patriot Coalition (Oct. 15, 2013)
"It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness…” - Charles Dickens.
Tenth Amendment Center (TAC) founder Michael Boldin apparently sees League City, Texas and Oxford, Massachusetts, both of which passed anti-NDAA resolutions, through two different lenses.
In a March 28, 2013 TAC article titled, “Resolution to Nullify NDAA Indefinite Detention Passes in League City, Texas,” Boldin is quoted as saying,
“This is a big step forward. Since this country was founded on the principle that “we the people” are supposed to be in charge, it makes sense that the most effective activism would start out on a local level. I congratulate all those who worked hard to get this resolution passed in League City.”
TAC’s League City article also states,
“The key clause of the resolution is the one calling for full noncompliance
with the federal government:
“Instruct all our public agencies to decline requests by federal agencies acting under detention powers granted by the NDAA that could infringe upon residents’ freedom of speech, religion, assembly, privacy, or rights to counsel”
I've not been able to find any TAC article celebrating adoption of their “noncompliance” resolutions as being merely “opinion,” yet, when Boldin writes about the recently adopted Albany, New York and Oxford, Massachusetts resolutions, he spends a considerable amount of time marginalizing both the resolutions and the proponents of it, citing “home rule” as a reason the Albany and Oxford resolutions are just “opinion.”
After declaring earlier this year that PANDA’s Dan Johnson was his “enemy” for not supporting the Michigan Warm Fuzzy Act (HB-4138) promoted by Boldin, it would seem that TAC feels threatened by anyone who isn't drinking his “nullification through non-compliance” koolaid.
Boldin’s thinly-veiled criticism of the Oxford, Massachusetts resolution is in actuality an attempt to marginalize and discredit People Against the NDAA (PANDA) and its youthful founder, Dan Johnson. His tone and rhetoric are condescending propaganda at best, and demonstrate his ignorance of, and disregard of the Constitution.
The oath of office required by the U.S. Constitution, Article VI, Clause 3 includes supporting the Constitution as the “supreme Law of the Land,” as it was ordained by the people to be, in Article VI, Clause 2.
Boldin’s hypothesis erroneously posits that only after a “law” is adopted are oath takers required to uphold the Constitution, and that “ignorance of the law” is an excuse to not protect the rights and liberties of the people, stating:
“Certainly, a constitutionalist would hope that peace officers, under their Oath to the Constitution, would agree with such a view in principle. But, unfortunately, claiming that a non-binding resolution expressing a Council opinion would have the effect of legally causing all who take an Oath to “know this is unConstitutional” is a stretch, at best. In order to change the policy and actions of the Albany Police department, specific legal mechanisms (or a lot of one-on-one education of peace officers) will be required.”
That is absurd at best.
While it is hardly conceivable that Boldin isn't aware of the source of the Restoring Constitutional Governance (RCG) resolution and model legislation, he erroneously states the Oxford RCG Resolution was “drafted by PANDA.”
While PANDA has certainly been, and continues to be a prime partner and well-informed advocate for our Restoring Constitutional Governance (RCG) legislation and local resolutions, the RCG was drafted as a part of The Intolerable Acts ACTION CENTER project after hundreds of hours of research by me, Patriot Coalition general counsel Richard D. Fry, a constitutional attorney, and Oath Keepers founder Stewart Rhodes, a Yale Law grad who specialized in the application of military law on civilian populations.
TAC’s “noncompliance” model simply tells state and local actors to “not do” something the law in question doesn't require them to do, that the U.S. Supreme Court has ruled the feds can’t do, and can’t make the states help them do. Also, there is nothing to “nullify” since the 2012 NDAA, Section 1021 was nullified from inception as it was not written “in Pursuance thereof” to the U.S. Constitution, as per Article VI, Clause 2.
It is worth noting that League City, Texas, falls under the “home rule” classification as well, so are we to presume that the League City noncompliance resolution’s “Instruct all our public agencies…” clause is merely a “request” based on the “opinion” of the council?
What the Tenth Amendment Center has promoted and celebrated in California and other states this past year is little more than smoke and mirrors borrowed from the worthless Virginia bill. It solicits legislators to ignore their duties of “allegiance and protection,” and encourages them to violate their Oath to support the Constitution by advising them to “stand down” instead of “stand up” and “interpose” themselves between the people and rogue federal agents violating their rights.
The “feel good” legislation adopted by California, Alaska, and Virginia is worthless. It gives legislators a pass for not protecting the rights of the people, and gives the people a false sense of security that the state, in passing this legislation, has restored or preserved their God-given, inalienable Rights. I’d hardly call any of them victories.
The Warm Fuzzy Act, aka “Liberty Preservation Act” borders on of “treason to the Constitution” according to U.S. Supreme Court Chief Justice John Marshall, who, in 1821 said,
“We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution."
If I heard it once, I heard it a dozen times from state legislators across the country, “We just need something we can pass.”
What they are really saying is: The natives are restless, and we need “feel-good legislation” that doesn't really do anything to solve the problem, but that will get them off our backs.
What PANDA reported in their recent press release is accurate.
“The tide is now turning against the NDAA’s detention provisions. Oxford’s Resolution states: “
…it is unconstitutional, and therefore unlawful for any person to:
a. arrest or capture any person in Oxford, or citizen of Oxford, within the United States, with the intent of “detention under the law of war,” or
b. actually subject a person in Oxford, to “disposition under the law of war,” or
c. subject any person to targeted killing in Oxford, or citizen of Oxford,
within the United States;…”
As Boldin stated in the article above, “we the people” are supposed to be in charge…” In Oxford, Massachusetts, the people ARE in charge, and the people have unequivocally resolved that what the feds are doing is unconstitutional.
The Restoring Constitutional Governance Resolution of Oxford, Massachusetts removes “plausible deniability” that public officials don’t know better, and most likely, the traditional “immunity” that public servants enjoy in the performance of their duties will not shield them from a jury’s scrutiny should the feds attempt, and the locals assist or refuse to interpose as their oath requires.
You don’t need a local “law” when you have the “supreme Law of the Land” on your side. We will never restore constitutional governance by enabling and rewarding public servants who refuse to actively defend our God-given inalienable Rights.
We the People need to do as the Founders advised during their “age of wisdom,” and grow out of what Dickens referred to as the “age of foolishness.”
How many times did Madison, Hamilton, or Jay use the word “nullify,” or any variation of it in the 85 essays comprising the Federalist Papers? ZERO.
How many times will you find the word “nullify” in the Virginia Resolution of 1798, penned by Madison as adopted by the Virginia Assembly? ZERO.
How many times will you find the word “nullify” in the Kentucky Resolution of 1798, penned by Jefferson as adopted by the Kentucky Legislature? ZERO. The Kentucky legislature “rejected” the language which most nullifiers deploy as “the rightful remedy.” You will only find it in the draft. (Notice the link to the actual language at the top in small print as “this version,” which at first glance appears to be the version on the page they call “The Kentucky Resolutions of 1798.”) This is also the version TAC erroneously promotes “were adopted by the Kentucky Legislature on November 10, 1798…”
Honest mistake? Perhaps, but if your objective is to market a concept the Constitution doesn't support, and the duties of “allegiance and protection” don’t permit, but you’re looking for validating a position that’s an easy sell, the draft version sounds great.
How many times will you find the word “nullify” or any variation of it in his Madison’s 1800 Report on the Virginia Resolutions? ONCE, and it was past tense (nullified), denoting not an action to be taken, but rather, the “status” of the Sedition Act.
How many times did Madison, Hamilton, or Jay use the word “interpose” or any variation of it in the 85 essays comprising the Federalist Papers? FIFTEEN.
How many times will you find the word “interpose” or any variation of it in Madison’s 1800 Report on the Virginia Resolutions? TEN.
The Framers, including James Madison, understood that a law not written “in Pursuance” of the Constitution was no law at all. They understood there was nothing to “nullify.” They also understood their duty was to stand between rogue federal agents and the people.
The duty is to “interpose.” Under the oath, and duty of “allegiance and protection,” actively defending the rights of the people is neither optional nor a form of nullification.
In “Correcting a Common Tenth Amendment Center Misunderstanding of ‘Nullification,” Patriot Coalition general counsel Richard D. Fry addressed the concept of “allegiance and protection,” stating in part, the following:
“Never heard of Allegiance and Protection? It is noted at least three times by the Apostle Paul, three times in the Declaration of Independence and it is the "allegiance" you refer to when you say " I pledge allegiance to the flag . . ." and has been recognized by the Supreme Court in many cases.” (Read full citations here.)
James Madison, in the Virginia Resolution of 1798, recognized the states’ right and duty to stand between rogue federal actions and the people by including this:
“that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in 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.”
The duty of a state to “interpose” on behalf of its citizens existed long before the Constitution. By adopting the Constitution, the states did not surrender or negate their duty to “protect” the folks within their respective jurisdictions; they added another layer of protection.
The Virginia, California, and Alaska “nullification” legislation is “non-compliance” legislation at best. What does that accomplish?
Imagine this. You’re in an alley, about to be mugged and kidnapped. A policeman happens to pass by, but instead of stopping (interposing) the mugger, the policeman doesn't help the mugger rob you. He just stands by and watches.
Don’t get excited or upset. Everything’s going to be just fine. The policeman won’t help the mugger tie you up, and he won’t let them use his police car to escape in, and won’t allow the mugger/kidnapper to hold you hostage indefinitely at the local police station. Feel better?
That’s what the NDAA “nullification” bills such as Tenth Amendment Center’s “Liberty Preservation Act” do. This is what they convinced Virginia, California, and Alaska to pass.
The 2012 NDAA violates over 14 provisions of the Constitution, including over half of the Bill of Rights. If that doesn't fit Madison’s definition of “a deliberate, palpable, and dangerous exercise of other powers,” I don’t know what does. If that doesn't require what Madison recognized as requiring the states, “who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil,” I shudder to think what would.
The battle against the ‘intolerable acts’ the 2012 NDAA authorizes should end the way Charles Dickens ended “A Tale of Two Cities,”
‘It is a far, far better thing that I do, than I have ever done;
it is a far, far better rest that I go to than I have ever known.’
Warm-fuzzy do-nothing legislation is not the “rightful remedy.” In fact, it is a recipe for disaster.
Both directly and indirectly, we've attempted to do as Jefferson advised, to “inform their discretion.” We are not their enemy, and neither is PANDA, but truth delayed is truth denied.
James Madison, in Federalist 40, said the following:
“If, according to the noble precept, it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends?
The prudent inquiry, in all cases, ought surely to be, not so much from whom the advice comes, as whether the advice be good.”
If Boldin and TAC won’t take our advice, or Madison’s, perhaps they will take their own.
Their motto is: “The Constitution. Every Issue, Every time. No Exceptions, No Excuses.”
We couldn't agree more.
