REVOLUTIONARY CONSTITUTIONALISM

Required reading for most any course in the Philosophy of Science is Thomas Kuhn’s The Structure of Scientific Revolutions (1962). 

Kuhn distinguished between "normal science," which is essentially puzzle-solving – trying to answer unsolved issues arising within a framework or "paradigm" of accepted scientific principles – and "revolutionary science," which is when the unsolved issues can no longer be answered within the paradigm and must be replaced by a new paradigm.

The classic historic example is Ptolemaic astronomy, which tried to explain the motions of the planets within the geocentric paradigm – that the sun revolved around the earth.  This "normal science" finally became so unbearably complicated that it broke down, to be replaced by the heliocentric "Copernican Revolution" – that the earth revolved around the sun (which Sir Francis Bacon accepted but called "a rape of the senses").

So let’s talk about The Structure of Political Revolutions.

One of the consequences of the Age of Zero our nation is currently suffering is an acceleration of the political problems or puzzles arising within the accepted framework of our national government in Washington.

Conservatives and TeaPartyers see the solution to these puzzles in something called "Constitutionalism," or as Michelle Bachmann (R-MN), founder of the Congressional Tea Party Caucus, puts it, "an adherence to the Constitution."

Well and good, we’d be freer for it – but this is still normal political science.  The time has come and gone for attempts to solve America’s political and governmental problems within the context of a debate between restricting the Feds to their "enumerated powers" and Feds who recognize no such restrictions.

That debate could not be better encapsulated than that between one of the most obnoxious fascists in Congress, Fortney Stark (D-CA), and one of his constituents at a townhall in Hayward last July 24.

The lady, Kymberleigh Korpus, makes a marvelously concise and articulate case that ObamaCare is a form of slavery:

"A right to health care is beyond the power of the government to confer… if we have a right to health care, then we have a right to compel others to provide those services for us… how can (ObamaCare) legislation be constitutional when it is in direct conflict with the 13^th amendment which abolishes slavery… and if it is constitutional, what limits are there are on the ability of the federal government to tell us how to run our private lives?"

Stark replies: "There are very few constitutional limits on rules that would affect your private life."

Ms. Korpus responds by explaining to him that the constitution limits the authority of the federal government to certain enumerated powers, and specifically prohibits slavery… that when you tell somebody you have a right to get a service from another, that is a form of slavery.

Stark responds: "The federal government, yes, can do almost anything in this country."

(Here’s the video.)

And that’s where we are, folks.  Stark turns 79 later this year, he’s been in Congress since 1972 (38 years), he was elected with 76% of the vote in 2008, his district (CA-13) comprises the eastern side of San Francisco Bay, he’s white as are 38% of his constituents, while 28% are Asian, 21% Hispanic, and just 6% Black.

His Republican opponent in November is a total unknown neophyte named Forest Baker whose website is perversely amateurish.

It does no good to ask how seemingly sane and regular Americans can elect a fascist wacko like Fortney Stark every two years for 38 years – because it does no good to ask questions or attempt to solve puzzles within a paradigm that has broken down.

It is the paradigm itself that now needs to be questioned.  The political problems of America can no longer be answered by the standard or normal interpretation of the Constitution provided by America’s Ruling Class of judges, politicians, pundits, and academics.

America’s problems and political puzzles can only be solved by a paradigm shift to a more fundamental understanding of America’s founding structure, a paradigm shift to Revolutionary Constitutionalism.

This shift begins with the Supremacy Clause.  Article VI Clause 2 of the Constitution states:

This Constitution, and the Laws of the United States which shall be made in  Pursuance thereof… under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Supremacy Clause is the basis for the Obama Justice Department’s suit against Arizona’s law 1070.  The suit begins with these words:

In this action, the United States seeks to declare invalid and preliminarily and  permanently enjoin the enforcement of S.B. 1070, as amended and enacted by the State of Arizona, because S.B. 1070 is preempted by federal law and therefore violates the Supremacy Clause of the United States Constitution.

Note the exact wording of the clause, that the Constitution and the Laws of the United States which shall be made in pursuance thereof shall be Supreme.  In other words, laws made by the federal government not in accordance with the powers granted it are not supreme at all.  Only those federal laws in pursuance of and in accordance with its granted powers have any supremacy over state laws (indeed, they have no validity at all).

Note what the clause does not say.  It says that the Constitution is the supreme law of the land.  It does not say that the federal government – which includes its court system – is the final interpreter of the Constitution.  And here we come to the crux of the matter.

The conclusion of the Declaration of Independence states:

That these united Colonies are, and of Right ought to be Free and Independent  States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.

That is, the 13 colonies that declared their independence did so as sovereign entities.  They then agreed, after the War of Independence was won, to a compact (Madison‘s term) between them to form a United States under a Constitution granting limited and specific ("enumerated") powers to a federal government.

The primary author of that Constitution, James Madison, stated this clearly in Federalist #39:

"The Constitution is to be founded on the assent and ratification of the people of  America …not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong… The act, therefore, establishing the Constitution, will not be a national, but a federal act."

The US government in Washington was formed as a compact between sovereign states – not individual Americans collectively.  This means that the government so formed was the outcome of the compact and not a party to it.  Only the states (originally 13, now 50) are.

The federal government is, in other words, like a treaty between sovereignties to create a limited-purpose organization – like NATO or the UN.  The sovereignties agree to abide by certain cooperative rules under limited circumstances – but that’s it.  However much the supra-national bureaucracy tries to get its member states to cede authority to it, independent sovereignty resides in the members – unless, of course, members surrender it.

Revolutionary Constitutionalism, therefore, regards the US Federal Government as an American version of the United Nations or NATO that has quite limited authority over the states that formed it as a compact between them.

What if the UN claimed a Supremacy Clause of some sort that gave it the right to make the US or any other member state an administrative district of the UN?  This is what Fortney Stark believes of the government in Washington.

That government is composed of three "co-equal" branches, legislative, administrative, and adjudicative – neither one of which is granted constitutional supremacy over the other, nor over the states.  Only the Constitution is Supreme, as are only laws passed by the legislative branch that are intra vires – within the powers granted by the Constitution.

All laws of Congress that are not intra vires are therefore Constitutionally void, as they are ultra vires, "beyond the powers" granted to Congress by the states via the Constitution.  All rules and regulations issued by an administrative agency are ultra vires, as the administrative branch of the government has no constitutional authority to pass any laws at all – only administrate the laws passed by Congress.

But who decides by what Constitutional authority, what laws are intra or ultra vires?  Not the federal judiciary including the Supreme Court.  The Marshall court in 1803 seized this authority in Marbury v. Madison, granting to SCOTUS the power of "judicial review" which determines all things constitutional.  But this seized authority is nowhere to be found in the Supremacy Clause or anywhere else in the Constitution.

So who does have the Constitutional authority to decide what laws are constitutional or not?  The states – the entities that created the compact of the federal government.

The states – their elected officials and agents –  have an obligation to obey the Constitution just as much as federal officials and agents do.  This means they are legally and constitutionally obligated to negate – to refuse to enforce or nullify – any and all federal laws claimed to apply to them for which there is no enumerated power.

Thus we come to the issue of Nullification.  Whenever a state today asserts its constitutional rights, such as the Idaho legislature nullifying ObamaCare, the Dems always tie it to the "state’s rights" ploy of Southern states to keep their Jim Crow racist laws back in the 1950s.

So let’s go to a non-Southern state, Wisconsin, and before the Civil War when slavery was legal.

In 1850, Congress passed the Fugitive Slave Act requiring escaped slaves be returned to their masters under penalty of federal law. In 1854, a slave named Joshua Glover escaped from Missouri to Wisconsin where he was arrested by a Federal Marshall and jailed in Milwaukee.  A local politician, Sherman Booth, led a group of 5,000 citizens who broke into the jail and set Glover free.

There is a Wisconsin Historical Society marker identifying the site of the court house and jail where Booth set Glover free:

Booth was arrested for violating the Fugitive Slave Act, the Wisconsin Supreme Court declared the law unconstitutional and ordered Booth freed.  The US Supreme Court, in Abelman v. Booth (1859) overturned the Wisconsin decision and ordered Booth re-arrested.  The Wisconsin authorities refused, and the state legislature passed the  Wisconsin Declaration of Defiance.

This document needs to be read and studied by all those who call themselves "constitutionalists."  Here is what it resolves.  Again, look at these words, issued by a state government wanting to free slaves to a federal government that wanted to impose slavery, very carefully:

Resolved, That this assumption of jurisdiction by the federal judiciary, in the said case, and without process, is an act of undelegated power, and therefore without authority, void, and of no force.

Resolved, That the government, formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

Resolved, That the principle and construction contended for by the party which now rules in the councils of the nation, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism, since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers; that the several states which formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a positive defiance of those sovereignties, of all Unauthorized acts done or attempted to be done under color of that instrument, is the rightful remedy.

This is what we need today – Declarations of Defiance with exactly this wording by states asserting their Constitutional right to nullify unconstitutional laws – regardless of any US Supreme Court ultra vires decision.

The time for trying to solve unsolvable problems within the present interpretation of the Constitution is past.  The Constitution is a grant of limited and specified powers to the federal government, and it is time for the grantors of those powers – the several and sovereign states which created these United States – to issue Declarations of Defiance forcing the federal government to act constitutionally.

It is time for  Revolutionary Constitutionalism.

[Note:  Many thanks to TTPer Paul Rosenberg for his invaluable advice.  I encourage you to consider his Cryptohippie service for secure Internet privacy.  For further discussion, see the recently published Nullification:  How To Resist Federal Tyranny In The 21^st Century, by Thomas Woods.]