The Sotomayor scare

By Timothy Baldwin

[Note: My son, Tim, writes today's column. He is an attorney who received his Juris Doctor degree from Cumberland School of Law in Birmingham, Alabama. He is a former prosecutor for the Florida State Attorney's Office and now owns his own private law practice. He is author of a new book, published soon by Agrapha Publishing, entitled FREEDOM FOR A CHANGE.]

Yes, yes, we have all heard the remarks from those who would call themselves conservative, libertarian or the like concerning the nomination and now swearing-in of Sonia Sotomayor to the United States Supreme Court, which took place on August 8, 2009. Yes, yes, books have been written by those conservative and libertarian editorialists and authors who have explained to us that the United States Supreme Court (US S CT) is "out of control" and how we must elect "conservative" Presidents to appoint "conservative" judges. Ironically, this infatuation with the federal government, and specifically with the judicial branch of the federal government, has actually (at least in part) created the growing enslavement of the people of these States United.

Certainly we should care about who sits on the US S CT bench. However, the time has come in our Confederate Republic (the USA) to acknowledge and understand that the power to govern ourselves justly and constitutionally is in the hands of the people of the several states of America — NOT in the hands of the branches of federal government. What most people in America have been duped to believe is that the US S CT is the final arbiter in all matters concerning government actions related to the US Constitution.

When it comes to US S CT rulings that contradict the US Constitution and that reject the historical facts and principles of our Republic, people feel hopeless and think that regaining freedom somehow means replacing the "liberal" judges with "conservative" judges. Such an approach to preserving freedom is not only un-American; it is fruitless and ineffectual. History now proves this. Additionally, this approach proves that the vast majority of Americans have been indoctrinated into the centralist-ideology imposed on us by not-so-innocent advocates of such a political belief system.

Let me state this clearly: the US Constitution does not grant to the US S CT the power to interpret the Constitution in contradiction to the terms of the Constitution, and it does not strip the powers of the States to actively arrest and resist tyrannical federal actions. The US S CT can no more violate the Constitution than the Legislative and Executive branches can. What sense does it make that the US S CT is bound by an oath to support and defend the Constitution and then has the power to interpret it however the heck they want to? Do you think our founders were so near-sighted and unlearned that they would have given to the US S CT this unchecked and unlimited power in the very document that states its purpose is "to secure the blessings of liberty"?

The framework of our Confederate Republic was clearly understood by those who advocated its ratification, namely, Alexander Hamilton, James Madison and John Jay: the writers of the Federalist Papers. These are the men who some today would argue advocated for a centralist government, reducing and eliminating the power of the states to resist and arrest federal usurpation of power. Obviously, these advocates of centralism would not have you aware of what these founders said on the subject, nor would they like to admit that the US Constitution formed a league of states, which was acceded to by each independent and sovereign act of the states, and which secured the right and duty of the states to actively guard against the encroachments of the federal government they created for the security of the blessings of liberty.

It must first be admitted that the US Constitution never gave to the US S CT the power to substitute their will for the intentions of the Founders of the Constitution. This is easy to prove. Alexander Hamilton admits this in Federalist Paper 78:

"It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature . . . The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body."

Here, Hamilton points out the fact that, in our Confederate Republic, the US S CT MUST apply the Constitution to all federal laws as intended by the Founders. They are NOT to place their will above the will of those who framed and acceded to the US Constitution. To suggest that the US S CT has the power to alter, change or amend the Constitution at will is to place the US S CT above the Constitution: they can no more do this than the legislative branch can pass an unconstitutional law and the executive branch can carry out an unconstitutional law. Or as Hamilton puts it, putting their will above the Constitution will "equally be the substitution of their pleasure to that of the legislative body." Neither is acceptable and neither is constitutional.

One cannot credibly and correctly argue that whatever the US S CT says goes. I should not even have to restate this maxim, but in America, it has been held true that any unconstitutional act is null and void. This applies to the US S CT as well. Thus, the question becomes, what can and what must the states do when all three branches of the federal government ignore the Constitution and trample over the intents of its foundational principles? The authors of the Federalist Papers give us some guidance on the subject.

In Federalist Paper 16, Hamilton explains in detail the states' right to actively resist federal tyranny and usurpation of power. Listen to Hamilton:

"The plausibility of this objection [that the states will at any time obstruct the execution of federal laws] will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated. This neglect of duty may be disguised under affected but unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the Constitution. The State leaders may even make a merit of their surreptitious invasions of it on the ground of some temporary convenience, exemption, or advantage.

"But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights . . . Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, UNLESS IN CASES OF A TYRANNICAL EXERCISE OF THE FEDERAL AUTHORITY." (Emphasis added.)

Here, Hamilton clearly recognizes the states' ability to actively intervene against the federal government "in cases of a tyrannical exercise of the federal authority." Hamilton also expounds upon the natural protection that the new system of the US Constitution provides, in that states will not so easily and readily interfere with federal action when such interference must be made actively and openly against the federal government. Certainly, where at least three-fourths (the percentage needed to amend the Constitution) of the states disagree with the State actively resisting the federal government, that State will consider the risks and costs to be too great to carry out and thus would not resist actively; instead, that State would use its VOICE and not its ARM to communicate its discontent. However, as told by Hamilton, "IN CASES OF A TYRANNICAL EXERCISE OF THE FEDERAL AUTHORITY," the states most certainly would use their ARM to arrest such tyrannical actions.

Hamilton describes the use of this ARM of the States in Federalist Paper 26:

"[T]he State legislatures, WHO WILL ALWAYS BE NOT ONLY VIGILANT BUT SUSPICIOUS AND JEALOUS GUARDIANS OF THE RIGHTS OF THE CITIZENS AGAINST ENCROACHMENTS FROM THE FEDERAL GOVERNMENT, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent . . . [T]he people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person." (Emphasis added.)

Hamilton goes so far as to say, if the federal government has usurped its powers and the people of the states feel it necessary, the states should secede from the union, dividing "themselves into as many states as there are counties, in order that they may be able to manage their own concerns in person." This is not I stating this: this is one of the most well-known Founding Fathers in American history. Hamilton further expounds upon this states' right and duty to check federal usurpation of power in Federalist Paper 28. He says,

"Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and THESE [THE STATES] 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. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!" (Emphasis added.)

Very clearly, Hamilton sees the brilliance of our Confederate Republic system of government, whereby the states can check the federal government and that where "rights are invaded" by the federal government, the people "can make use of the [states] as the instrument of redress." Hamilton continues in this discussion, saying:

"It may safely be received as an axiom in our political system, that THE STATE GOVERNMENTS WILL, IN ALL POSSIBLE CONTINGENCIES, AFFORD COMPLETE SECURITY AGAINST INVASIONS OF THE PUBLIC LIBERTY BY THE NATIONAL AUTHORITY. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, THEY CAN AT ONCE ADOPT A REGULAR PLAN OF OPPOSITION, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and UNITE THEIR COMMON FORCES FOR THE PROTECTION OF THEIR COMMON LIBERTY." (Emphasis added.)

Even as expressed by the centralists' hero, Alexander Hamilton, the states were not left impotent regarding federal tyranny and were not stuck with the fruitless redress only through the US S CT. Hamilton clearly suggests that the states have the sovereign and active power to arrest the exercise of federal tyranny.

Again, the question here is not, does the federal government have the power to act within its delegated powers, for we all would concede that the federal government has the power to do what we the people in the several states delegated to the federal government. We acknowledge, as Hamilton expresses in Federalist Paper 27, "the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land." Rather, the question is, what are the states going to do in response to the usurpation of powers that have been tyrannically taken by all three branches of the federal government? The question is, what are the states going to do when the federal government has passed, upheld and executed laws that are not "enumerated and legitimate objects of its jurisdiction"? After all, such laws are by definition NOT the supreme laws of the land and consequently, the people of the states and the states themselves are not bound to them. (Of course, this necessarily implies that we the people understand the Constitution, the principles of our government and the true character and nature of our government.)

Are the people of the states to sit back and let the federal government trample over the rights, principles and structure of our Confederate Republic? Is every State to shirk its responsibilities and duties to actively protect, preserve and defend the freedoms of its sovereign (the people of the State) against federal tyranny? Are the people of the states to live and be governed in tyranny with the only hope that we will hopefully elect a President who will hopefully appoint a US S CT justice to the bench so that the Court can hopefully hear a case on the direct issue so that the Court will hopefully rule the correct way? Nonsense!

The time has come that the people of the several states of America wake up to the truth of their history: they are citizens of independent and sovereign states; the US S CT is NOT the final arbiter in matters of freedom; the federal government is not the source of our freedom; the states have the duty to resist the encroachments of federal usurpation; and freedom can be restored when the Confederate Republic is restored. To that end, we must not fear Sotamayor; rather, we should insist that she fear the states — and obey the Constitution!

© Timothy Baldwin