Madison described four things we can do to resist federal power.
1. Disquietude of the people. Throw a fit when the feds usurp power.
2. Noncompliance. Refuse to co-operate with officers of the Union.
3. Madison envisioned governors formally protesting federal actions.
4. Legislative devices, which can often be added.
In making the list, Madison did NOT include federal lawsuits in federal courts. He did NOT include "voting the bums out" either.
This journey will not be quick. Lets get started
UNDERSTANDING THE REAL PROBLEM- -
Civil Action Jurisdiction v. Corporate Government Status
Talking heads (self proclaimed Patriots) have always claimed that the multitude of problems that have existed and continue to exist in the Republic(s) today, stem from the fact that government entities whether they be Federal, State, County, or Local municipalities are operating as Corporations. Although in “form” this is true, the real “substantive” problem has occurred in the judiciaries, when both the Federal Judiciary and the several States altered the rules under which Plaintiffs and Defendants were now to operate- - the “Civil Action Jurisdiction” The Supreme Court of the United States by Order of December 20, 1937, pursuant to Section 2 of the Act of June 19, 1934, Chapter 651(48 S tat. 1064), as well as the Michigan Constitutions of 1908 and 1963, when they established the “civil action” jurisdiction, both “usurped” authority they did not possess to change the jurisdiction of the inferior courts from “at-law” and “equity”, to the “civil action” jurisdiction, thus removing the Constitutional jurisdiction of the “de jure” from the Citizens; and making that Act of 1934 and the Michigan Constitutions “null and void”, or to put it in the words of Chief Justice Nicholson that such “…public functionaries had any more powers under said act than if no act had been passed…” , as mentioned in Norton v Shelby County 118 US 425 (1886). Further mentioned in Norton, supra. by Justice Nicholson at page
“Upon the construction of the constitution and laws of a state, this court, as a general rule, follows the decisions of her highest court, unless they conflict with or impair the efficacy of some principle of the federal constitution, or of a federal statute, or a rule of commercial or general law. In these cases no principle of the federal constitution, or of any federal law, is invaded, and no rule of general or commercial law is disregarded”.
Further pp 442- -
An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed”.
Also see: Norton, supra. at 443- -
“The court said: 'Although they assumed the functions of judges and clerk, and attempted to act as such their acts in that character are totally null and void, unless they had been regularly appointed under and according to the constitution. A de facto court of appeals cannot exist under a written constitution which ordains one supreme court, and defines the qualification and duties of its judges, and prescribes the mode of appointing them… When there is a constitutional executive and legislature, there cannot be any other than a constitutional judiciary. Without a total revolution, there can be no such political solecism in Kentucky as a de facto court of appeals. There can be no such court while the constitution has life and power. There has been none such. There might be under our constitution, as there have been, de facto officers; but there never was, and never can be, under the present constitution, a de facto office.'”
During that same time period, in 1937, 2 common law Writs were abolished to aide in preventing challenges of the “civil action jurisdiction”, (Writ of error coram nobis, Writ of error coram vobis).
Norton v. Shelby County, 118 U.S. 425 (1886)
Mr. Norton believed he had purchased 29 bonds, of $1,000 each, from Shelby County, Tennessee and was demanding payment. The bonds were issued by Shelby County and authorized by the "county commissioners". The defendant, Shelby County, contends that the commissioners were not lawful officers of the county as there was no such office as county commissioners and therefore the bonds were issued without authority and are void. From the beginning, the administration of local government was lodged in a county court composed of "Justices of the Peace", elected in each district. Mr Norton said further that he believed if the Commissioners were not "de jure", they were "de facto" and he should be paid. The court said there was no "de jure" office of "Commissioners" created, therefore there could be no "de facto" office either. Holding for defendant.
" An unconstitutional act is not a law; it confers no rights; it imposes no duties;
it affords no protection; it creates no office; it is, in legal contemplation,
as inoperative as though it had never been passed."
"de jure" within accordance of the United States Constitution; by authority of the United States Constitution
"de facto" without the authority of the United States Constitution
"usurpation" in violation of ones oath of office, outside his/her delegated authority, outside of his/her "scope of employment".
"delegation" authority past on to public functionaries by the Citizens who are sovereign in the Republic.
"ratification" authority reaffirmed by the Citizens.
Hale v Henkel, 201 U.S. 43 (1906)
Mr. Henkel formed a Grand Jury and subpoenaed Mr. Hale to bring in certain documents and testify about them.
Mr. Hale resisted because he did not want to incriminate himself. He plead the Fifth Amendment"
Holding: Mr. Hale had to bring the documents and testify, as he was already protected from prosecution by the Grand Jury proceeding.
A more complete description of the Grand Jury function is contained in a lecture by Mr. Justice Wilson of this court in Pennsylvania:
"It has been alleged that grand juries are confined in their inquiries to the bills offered to them, to the crimes given them in charge, and to the evidence brought before them by the prosecutor. But these conceptions are much too contracted. They present a very imperfect and unsatisfactory view of the duty required from grand jurors and of the trust reposed in them. They are not appointed for the prosecutor or for the court; they are appointed for the government and for the people; and for both the government and the people it is surely the concern that, on the one hand, all crimes, whether given or not given in charge, whether described or not described with professional skill, should receive the punishment which the law denounces; and that on the other hand, innocence, however strongly assailed by accusations drawn up in regular form, and by accusers, marshaled in legal array, should, on full investigation, be secure in that protection which the law engages that she shall enjoy inviolate."
"The oath of a grand juryman -- and his oath is the commission under which he acts -- assigns no limits, except those marked by diligence itself, to the course of his inquires. Why then, should it be circumscribed by more contractual boundaries? Shall diligent inquiry be enjoined? Shall the means and opportunities of inquiry be prohibited or restrained?"
"If the grand jury, of their own knowledge or the knowledge of any of them, or from the examination of witnesses, know of any offense committed within the county for which no indictment is preferred to them, it is their duty either to inform the officer who prosecutes for the state of the nature of the offense, and desire that an indictment for it be laid before them, or, if they do not, or, if no such indictment be given them, it is their duty to give such information of it to the court, stating, without any particular form, the facts and circumstances which constitute the offense. This is called a presentment."
"...we are of the opinion that there is a clear distinction in this particular between an
individual and a corporation, and that the latter has no right to refuse to submit its
books and papers for an examination at the suit of the State. The individual may stand
upon his constitutional rights as a citizen. He is entitled to carry on his private business
in his own way. His power to contract is unlimited. He owes no duty to the State or to his
neighbors to divulge his business, or to open his doors to an investigation, so far as it
may tend to criminate him. He owes no such duty to the State, since he receives nothing
therefrom beyond the protection of his life and property. His rights are such as existed by
the law of the land long antecedent to the organization of the State, and can only be taken
from him by due process of law, and in accordance with the Constitution. Among his rights
are a refusal to incriminate himself and the immunity of himself and his property from arrest
or seizure except under a warrant of the law. He owes nothing to the public so long as he
does not trespass upon their rights.
Upon the other hand, the corporation is a creature of the State. It is presumed to be
incorporated for the benefit of the public. It receives certain special privileges and
franchises, and holds them subject to the laws of the State and the limitations of its charter.
Its powers are limited by law. It can make no contract not authorized by its charter. Its rights to..."
Downes v. Bidwell, 182 U.S. 244 (1901)
Mr. Downes is an importer and Mr. Bidwell is a collector of the port of New York.
Mr. Downes wishes to recover taxes collected by Mr. Bidwell on some oranges brought to New York from San Juan
In order to decide this case, the court had to review the entire process that resulted in the U.S. Constitution and its implications for states, territories and any other future acquisitions. Reading this case is like taking a course in Constitutional Law.
Here are a few highlights.
"Mr. Justice Matthews, said: 'When we consider the nature and theory of our institutions
of government, the principles upon which they are supposed to rest, and review the history
of their development, we are constrained to conclude that they do not mean to leave room
for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course,
not subject to law, for it is the author and source of law; but in our system, while sovereign
powers are delegated to the agencies of government, sovereignty itself remains with the people,
by whom and for whom all government exists and acts. And the law is the definition and
limitation of power.'
In the language of Judge Cooley: 'The Constitution itself never yields to treaty or enactment;
it neither changes with time nor does it in theory bend to the force of circumstances. It may
be amended according to its own permission; but while it stands it is 'a law for rulers and people,
equally in war and in peace, and covers with the shield of its protection all classes of men, at
all times and under all circumstances.' Its principles cannot, therefore, be set aside in order to
meet the supposed necessities of great crises. 'No doctrine involving more pernicious consequences
was ever invented by the wit of man than that any of its provisions can be suspended during any
of the great exigencies of government."
"The idea prevails with some-indeed, it found expression in agruments at the bar-that we have in
this country substantially or practically two national governments; one to be maintained under
the Constitution, with all its restrictions; the other to be maintained by Congress outside and
independently of that instrument, by exercising such powers as other nations of the earth are
accustomed to exercise. It is one thing to give such a latitudinarian construction to the
Constitution as will bring the exercise of power by Congress, upon a particular occasion or
upon a particular subject, within its provisions. It is quite a different thing to say that Congress
may, if it so elects, proceed outside of the Constitution. The glory of our American system
[182 U.S. 244, 381] of government is that it was created by a written constitution which protects
the people against the exercise of arbitrary, unlimited power, and the limits of which instrument
may not be passed by the government it created, or by any branch of it, or even by the people
who ordained it, except by amendment or change of its provisions. 'To what purpose,' Chief
Justice Marshall said in Marbury v. Madison, 1 Cranch, 137, 176, 2 L. ed. 60, 73, 'are powers
limited, and to what purpose is that limitation committed to writting, if these limits may, at any
time, be passed by those intended to be restrained? The distinction between a government with
limited and unlimited powers is abolished if those limits do not confine the persons on whom they
are imposed, and if acts prohibited and acts allowed are of equal obligation.'
The wise men who framed the Constitution, and the patriotic people who adopted it, were
unwilling to depend for their safety upon what, in the opinion referred to, is described as 'certain
principles of natural justice inherent in Anglo-Saxon character, which need no expression in
constitutions or statutes to give them effect or to secure dependencies against legislation
manifestly hostile to their real interests.' They proceeded upon the theory-the wisdom of
which experience has vindicated- that the only safe guaranty against governmental oppression
was to withhold or restrict the power to oppress. They well remembered that Anglo- Saxons
across the ocean had attempted, in defiance of law and justice, to trample upon the rights of
Anglo-Saxons on this continent, and had sought, by military force, to establish a government
that could at will destroy the privileges that inhere in liberty. They believed that the establishment
here of a government that could administer public affairs according to its will, unrestrained by any
fundamental law and without regard to the inherent rights of freemen, would be ruinous to the
liberties of the people by exposing them to the oppressions of arbitrary power. Hence, the
Constitution enumerates the powers which Congress and the other departments may exercise,
-leaving unimpaired, to the states or the People, the powers not delegated to the national
government nor prohibited to the states. That instrument so expressly declares in
[182 U.S. 244, 382] the 10th Article of Amendment. It will be an evil day for American liberty
if the theory of a government outside of the supreme law of the land finds lodgment in our
constitutional jurisprudence. No higher duty rests upon this court than to exert its full
authority to prevent all violation of the principles of the Constitution.
By the express words of the Constitution, every Senator and Representative is bound,
by oath or affirmation, to regard it as the supreme law of the land. When the constitutional
convention was in session there was much discussion as to the phraseology of the clause
defining the supremacy of the Constitution, laws, and treaties of the United States. At one
stage of the proceedings the convention adopted the following clause: 'This Constitution,
and the laws of the United States made in pursuance thereof, and all the treaties made
under the authority of the United States, shall be the supreme law of the several states
and of their citizens and inhabitants, and the judges of the several states shall be bound
thereby in their decisions, anything in the constitutions or laws of the several states to
the contrary notwithstanding
. But the framers of the Constitution saw the danger of such a provision, and put into that
instrument in place of the above clause the following: 'This Constitution, and the laws of
the United States which shall be made in pursuance thereof, and all treaties made, or
which shall be made, 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, anything in the constitution
or laws of any state to the contrary notwithstanding.' Meigs's Growth of the Constitution, 284,
287. That the convention struck out the words 'the supreme law of the several states,' and
inserted 'the supreme law of the land,' is a fact of no little significance. The 'land' referred to
manifestly embraced all the peoples and all the territory, whether within or without the states,
over which the United States could exercise jurisdiction or authority."
Listen to John and Ron on the law and smart meters at the Peter Santilli Show
Listen to John and Ron on the law and smart meters a Luca Zanna Show
Remember that “when a man who is honestly mistaken learns the truth, he will either no longer be mistaken or he will cease to be honest”.