TYRANNY ON A ROLL: SCOTUS AGAIN SUBVERTS THE CONSTITUTION

Looks like our invincibly arrogant Supreme Court is on a Progressive roll–a veritable steamroller of errant and overreaching Delphic rulings quite at odds with our Constitution.

On the heels of the Court’s outrageous ruling yesterday on Obamacare, here it goes again by “ruling” that same-sex marriage is a “constitutional right”. Huh? Constitutional right? Since when can SCOTUS grant rights? This ruling is much more than mystifying; it is subversive.

While the same-sex ruling was entirely predictable–no less so than the Obamacare, aka SCOTUScare, ruling yesterday–I am no less stunned by this judicial quackery and lawlessness.

Thinking I may have missed something along the way, this morning I carefully re-read my copy of the Constitution, and for the life of me I couldn’t find marriage of any kind defined as a “constitutional right”. Nowhere! In fact, marriage isn’t even mentioned in the text.

Per the 10th Amendment of the U.S. Constitution, any power not specifically/expressly delegated by the States to the federal government remains with the States and the People. Thus, defining marriage is a State power and same-sex marriage is constitutional ONLY if the individual State and its citizenry says it is. This isn’t rocket science, folks. It’s the law. And the obscene misapplication of the 14th Amendment’s “”equal protection” clause yet again cannot nullify the authority of the 9th and 10th Amendments. Only a constitutional amendment can do that.

Just what Constitution are these Progressive judicial oligarchs reading? Have they even read the Constitution? And, if so, do they at all regard the US Constitution as the supreme law of the land? Obviously not. Clearly, Judicial Supremacy has virtually supplanted Constitutional Supremacy. And therein lies the seed of our self-destruction.

Wouldn’t it be splendid–indeed, principled and courageous–were the States to exercise their lawful authority by NULLIFYING this outrageous judicial usurpation of State sovereignty? Without spine and political courage at the State level, the US Constitution is, without question, D-E-A-D and this “constitutional republic” but an illusion.

Until this judicial tyranny is stopped, what precious remains of this tattered constitutional republic will be relegated to the dustbin of history.

I do not see a good end to this lawlessness. As to a remedy, let our Founders be our guide …
————-
“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create…liberties…that the Consti­tution and its Amendments neglect to mention. This practice of constitutional revision by an unelected commit­tee of nine, always accompanied (as it is today) by extrav­agant praise of liberty, robs the People of the most im­portant liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.” Justice Anthony Scalia, June 26, 2015, regarding the same-sex SCOTUS ruling.

Utah Governor Bows to Federal Judiciary

Tuesday, October 7, 2014
Utah Governor Bows to Federal Judiciary
In response to the Supreme Court’s deferral to a lower court’s decision to override Utah’s ban against gay marriages, Utah Governor Gary Herbert announced his intention today to “uphold the rule of law” by permitting gay marriages in Utah.

While he expressed his disappointment and even voiced his belief that defining gay marriage was within the purview of State authority, in the next breath he cavalierly yielded to the federal judiciary, thus violating what appeared to be his own sincere commitment to adhere to the rule of law.

Like so many of his other gubernatorial peers throughout the country, and by his dismaying self-contradictory stance in this matter, Gov. Herbert demonstrates that he is both confused and terribly ignorant of just what constitutes the “rule of law”. I can only hope that this plague of ignorance gripping our State leadership throughout the country is unwitting and remediable.

For me, the issue is NOT merely a matter of whether or not gay marriage should be legalized by Utah or any other State, but, far more importantly, it is a matter of constitutional law, that law, the Supreme Law of the Land, with which Governor Herbert appears to be at once so fervently enamored and yet so terribly conflicted.

To Governor Herbert: The Supreme Law of the Land is the Constitution–NOT the federal judiciary!!!!!

Thus, if the Governor is, as he asserts, committed to “upholding the rule of law”, then, in accordance with his oath of office, that is precisely what he should do. In this instance, however, he flagrantly abdicated to the federal judiciary and, in so doing, he, in fact, abandoned the “rule of law”.

The Supremacy Clause (Art VI para 2) grants supremacy to federal law/dictates only to the extent that those laws/dictates fall within the scope of clearly defined federal powers (Art 1). Per the 10th Amendment, those powers not specifically delegated to the federal government reside with the individual States and its People. These residual powers, whether enumerated or implied, are limited only by Art I Sec 8, Art I Sec 10 and Art VI para 2 of the Constitution. In other words, those powers not specifically delegated by the States and the People to the federal government are unarguably vested in the States and the People. Thus, like a whole host of matters these days, the federal government has absolutely no authority whatsoever to define gay marriage in the States. Period! Fullstop!

So, why is Governor Herbert and so many other elected State officials routinely deferring to federal laws/edicts/rules? My guess is that it is born of ignorance, willful or otherwise, but, more than likely, a burning and suicidal desire for an unencumbered stream of federal handouts.

For Governor Herbert and his gubernatorial peers, two clear, concise quotes for your attention and compliance:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.” (10th Amendment, US Constitution, 1791)

“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.” James Madison (The Federalist #45)

Restoration of constitutional order and the proper balance of power between the States and the federal government cannot be achieved until elected State officials dust off, read and faithfully adhere to our foundational constitutional principles. Only in this responsible way can the Rule of Law be achieved.

Until this pervasive and dangerous inclination on the part of our leaders to ignore the clear meaning of the Constitution is reversed, what precious little remains of our constitutional republic will soon slip into oblivion. In short, this sort of insidious suicidal ignorance of the Law must come to a screeching halt–and soon!!!

Palin’s Call for Impeachment: What’s Possible?

Gov. Palin’s recent call for Obama’s impeachment has finally crystallized the gravity of our Republic’s sorry condition.

In the face of so many scandals and cover-ups, impeachment is no longer unthinkable or politically incorrect. Clearly, the pattern of lawlessness and obstructionism exhibited by this Administration has reached a crescendo of seriousness not seen since Watergate, and sooner rather than later the tide toward impeachment may well be unstoppable.

As President Ford iterated, and as clearly explained by our Founders, an impeachable offense is whatever Congress says it is; thus, the bar for impeachment is as low or as high as we, through our representatives in the House, say it is.

Bearing in mind that impeachment is a political–not a legal–process, given the growing groundswell of acute opposition to the Obama Regime’s arrogance and overreach, we may well be reaching that point at which the House will be compelled to invoke articles of impeachment against a chief executive who continues to ruthlessly flout the Rule of Law, circumvent Congress, and violate Art II of the Constitution.

As a purely practical political matter, however, without a 2/3 majority in the Senate to convict and remove, successfully impeaching Obama or any of his henchmen, either of which requires only a majority in the House, would be little more than symbolic and would do nothing to effectively arrest the heavy-handed inclinations of the White House and its equally imperialistic bureaucratic realm.

Bearing in mind that in the alternate universe called government political equations almost invariably trump principle, my guess is that this is why Speaker Boehner is reluctant to proceed with impeachment. He’s calculating that the negative political fallout stemming from a dead-end impeachment-conviction process would very likely adversely affect GOP political fortunes going forward. And this is something he wants to avoid at nearly any cost. He knows that the highly effective Liberal sound bite machine would quickly characterize the impeachment action as little more than needlessly disruptive GOP “grand-standing” and “obstructionism”. Thus, for better or for worse, in the bizarro world called government where realities are dictated by whether or not one is able to retain one’s political power, until the GOP captures a safe 2/3 majority in the Senate impeachment is a non-starter.

That said, the fact that there is such a widespread and growing push for impeachment indicates a republic in disarray and crisis. Unquestionably, our Republic is in greater danger from iniquitous forces from within than we’ve ever known in our history. How successfully we handle this unprecedented crisis and the threats which face us remains to be seen.

For the moment, the GOP is relying on the courts, often themselves at odds with the Constitution, to checkmate a runaway Executive Branch. At the grassroots level, the People are exercising their right to resist by peacefully blocking buses and standing up to BLM. But, if all those efforts fail to restore the Rule of Law and constitutional order, wise political leaders must be aware that those millions of People who value their Liberty and their Republic will be pushed only so far, beyond which all manner of God-given and Founder-sanctioned rights to resist remain constitutional options.

(See OPINERLOG blog post “Obama: Is Impeachment a Viable Option, dtd 8/1/11)

“Power corrupts, and absolute power corrupts absolutely.” Lord Acton

“Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience.” John Locke (1690)

The Bundy Siege: Federal Imperialism & State Sovereignty

The Bureau of Land Management’s imperious siege of the Bundy Ranch in Nevada compels me to re-publish this post. I ask readers to carefully research this issue and to decide for yourselves whether or not the federal government has violated public trust and the Rule of Law.

For a painfully long time now, our federal masters and their judicial enablers have ignored and, to my way of thinking, flagrantly violated the Constitution with impunity. All too often, Supreme Court rulings have served to override common sense, constitutionality and original intent.

And so long as black-robed, unelected and unaccountable judicial oligarchs, aka judges–as well as the submissive states themselves–allow “judicial supremacy” to trump “constitutional supremacy” on a whole host of foundational constitutional issues, our economic growth will be hobbled, our liberties diminished, state sovereignty further degraded, constitutional order imperiled, common sense and Rule of Law abandoned.

To wit, per Art 1.8.17 of the Constitution and provisions of the Northwest Ordinance of 1787, and despite a veritable cesspool of clubby, contrived and revisionist court rulings over the years through which I was barely able to wade, it appears glaringly obvious to me that our federal overseers are occupying millions of otherwise productive acres within the several states without the “concurrence” of those states and without constitutional justification.

Article 1.8.17 (“Enclave Clause”) granted power to Congress “to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States [i.e. the District of Columbia], and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.” Crystal-clear what the original meaning is here despite the shamelessly self-serving litany of subsequent spin on the part of our judicial overlords, lap dogs of the federal government.

Clearly this clause meant that the people of the states empowered Congress to exercise complete jurisdiction and authority over all lands or facilities purchased within a state, provided it was with the consent of the legislature of that state, and that such lands would be used for the erection of forts, magazines, arsenals, dock yards, and other needful buildings.” Clearly implied in this clause is that the several states, the immediate fiduciary agents of the people, reserve the right to assume title to all lands within their borders which are not being used by the federal government for the specific purposes provided in the clause, that being “the erection of forts, magazines, arsenals, dock yards, and other needful buildings.”

It is also important to note that nowhere in the Constitution is the federal government granted the enumerated power of complete jurisdiction and authority over state territory; thus, state retention and ownership of public lands stems from the 10th Amendment which reserves all rights to the states which are not specifically granted to Congress. The twisted and carefully crafted Delphic court rulings notwithstanding, the original meaning seems abundantly clear to me.

Art 4.3.1 allowed a mechanism for the formation and admission of new states into the union, and Art 4.3.2 described the extent of congressional authority over federal territory within those states. Subsequently, the Supreme Court ruled that federal property applies only to the territory at the time of the Constitution’s adoption and is considered public land only until that territory is granted statehood and the national debt incurred by the Revolutionary War is paid. In other words, temporary federal control over those lands.

In accordance with the Northwest Ordinance of 1787, which was re-enacted after the Constitution’s ratification, all new states were to be admitted to the union on the basis of full equality with the original thirteen states. It was generally understood that as territories were granted statehood, the people of those states would acquire title to all lands within their state boundaries—except, of course, those lands granted to the feds for those well-defined purposes cited in Art 1.8.17.

To help pay down the national debt, Congress assured the states of full title to those lands not used for federally sanctioned purposes when that land was sold off. The following then became the established policy for new states:

1. The feds would retain all ungranted public lands.

2. The feds guaranteed that it would dispose of these lands as soon as possible.

3. The new state would acquire jurisdiction over these lands as fast as they were sold to private individuals.

4. States would be admitted on the basis of “equal footing” with the original 13 states (each of which retained complete ownership/control over their respective territories.

As a result, all states east of the Mississippi and those comprising the Louisiana Purchase eventually acquired title to all but a very small portion of the land lying within their state boundaries.

However, following our war with Mexico, Congress inexplicably digressed from this policy and virtually eliminated the sale or disposal of federal lands in the western states. This resulted in Congress’s retaining major portions of those state lands, this in seemingly direct contravention of the Constitution and of the Northwest Ordinance. Essentially, the federal government became the sole owner and manager of nearly 30%, or a whopping 650 million acres, of America’s landmass, for the constitutionally unspecified purposes of maintaining national forests, national parks, national monuments, Indian reservations, coal and oil reserves, lands leased to farmers and ranchers, and resources-rich so-called “wilderness areas”. And, of course, the cost to taxpayers for maintaining the sprawling federal bureaucracy in order to manage these federally controlled lands is in the billions of dollars.

Federal defenders of this overreach breathlessly point to the so-called “property clause” (Art 4.3.2) which provides that “Congress shall have power to dispose of and make any needful rules and regulations respecting the territory or other property belonging to the United States and any territory or property belonging to the United States.” Clearly, doesn’t this create a convenient constitutional ambiguity by contradicting the original intent of Art 1.8.17? Does this not exact restrictions on the western states, which had never been imposed on earlier states? So much for states being admitted into the union on “equal footing” and “full equality” with earlier states. Is federal retention of 30% of America’s real estate really a “necessary and proper” exercise of federal powers? For me to believe that would require a willful suspension of common sense.

To give you an idea of how much state land is now imperially held by the feds, check this out: NV 85%, AL 70%, UT, 60%, OR 53%, AZ 47%, CA 45%, WY 42%, NM 42%, CO 37%, and poor Alaska 96%! Note: 65% of federal land holdings are located west of the Mississippi and a paltry 1% of all federally controlled land in the country is currently being utilized for those specific purposes cited in Art 1.8.17. One must wonder why these lands are still being held by the feds. Pay off the Revolutionary War debt? Gee, I don’t think so. Lofty, if not entirely contrived, constitutional justifications? Or, more likely, the relentless federal grasp for power and, today, a way to placate a host of environmental allies by denying the states and the country access to those climate-warming pollutants such as oil and gas.

Regarding the Enclave Clause, James Madison stated that “the public money expended on such places, and the public property deposited in them, require that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated by requiring the concurrence of the States concerned in every such establishment.” But, have the courts sought the concurrence of the states? Nope.

Clearly, the federal government is occupying millions of acres without the “concurrence” of those states, but maintains their grip with the twisted and self-serving judicial sanction of federal Courts intent upon expanding and strengthening federal power.

So, what is the recourse of the several states? My opinion, which is shared by many other originalists, is that in keeping with the doctrine of state sovereignty, original intent and the 10th Amendment, states should simply legislatively assume title of all lands not being utilized by the federal government as specified in the Enclave Clause. Of course, to placate the courts and public opinion, states should first sue the federal government to acquire title. And since the states will not prevail in such a lopsided judicial struggle, they should then rightfully and unhesitatingly assert their 10th Amendment rights by immediately assuming direct ownership and control of what I have dubbed the “royal federal reserves” lying within their state boundaries.

But, do the chastened, weak-kneed, and heavily bribed states have the backbone to hazard the restoration of their constitutional sovereignty and honor? Ah, yes, that’s the burning question.

The constitutional issue aside for a moment, in truth the achievement of energy independence alone should provide ample motivation for the states and their people to step up and take back their land, which is illegally held by the feds. And should the states fail to assert their rights under the original constitution, they should quietly accept their bondage and compliantly move on with their drab, submissive lives.

“An injustice unchallenged is justice denied. “Author Unknown

“In the Constitution, the term state most frequently expresses the combined idea…of people, territory and government. A state, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.” State of Texas v White (1868)

“Nothing should ever be implied as law which leads to absurd or unjust consequences. “Abraham Lincoln (1861)

 

Gun Control: Ideology vs Commonsense

During his recent Newton speech, the President promised to “use all the power of his office”–and then some, I’ll wager–to “protect our children.” A lofty goal, but why are his words not reassuring, but, rather, cause for genuine concern?

With Rahm Emanuel’s “never let a crisis go to waste” in mind, my justifiable concern is that Progressives don’t merely seek “gun control”; they seek “people control”, which is precisely why their gun control arguments are so often mystifying, twisted, disingenuous, illogical, grossly ineffective, and dangerously farcical.

Without trampling the Constitution, there are eminently practical solutions to better safeguarding our children which do not involve disarming law-abiding citizens. For example, schools are currently “gun-free zones”, an inane invention of the Left, which essentially renders schools “free fire zones” for armed evildoers.  Like in Israeli border areas, one or two armed and trained staffers in each school would dramatically reduce or virtually eliminate the slaughter of innocents. Deterrence with the threat of deadly counterforce works!

If we follow what passes for liberal “logic”, to reduce the preventable slaughter in our country across the board, then trains, airplanes, motor vehicles, knives, playgrounds, bows and arrows, stones, cribs and tire irons, among other lethal objects, should also be dramatically curtailed or altogether outlawed. Oh. And let’s not forget doctors whose malpractice is responsible for nine times more deaths than gun homicides! Duh.

In any case, let’s insist that an honest, bipartisan, professional, objective and sober cause-and-effect appraisal follows this horrible Newtown tragedy–not more ideologically-motivated palaver which serves only to enhance government control and precious little else.

“Laws that forbid the carrying of arms . . . disarm only those who are neither inclined nor determined to commit crimes . . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” –Thomas Jefferson, quoting Cesare Beccaria in On Crimes and Punishment (1764).

Executive Orders & the Death of Our Republic

Retroactive from 1862, not until 1907 were Executive Orders (EO’s) published in the Federal Register. And today, over 15,000 EO’s have been issued and published. But, just what are they, and, more importantly, are they constitutional?

The short of it is that EO’s, aka signing statements, presidential determinations, presidential memorandums, presidential notices, presidential orders, have inexorably led to legally binding presidential directives substantially affecting not only executive administrative matters, but both national and foreign policy as well.

With that in mind, the greatest fear of the founders was the establishment of a powerful central government and a strong political leader at the center of that government. They were determined to prevent the rise of monarchs, potentates or czars. Their plan was for a voluntary association of sovereign States in which power emanated from the States and the People, not from an overweaning central authority. For the framers and ratifiers, Congress, properly checked by both the Judiciary and the Executive, was intended to be THE focus of federal power and THE source of federal law.

Art I, Sec 1 of the US Constitution concisely and unambiguously provides that “all legislative powers herein granted shall be vested in a Congress…” In sharp contrast, Art II specifically outlines Executive powers and duties, none of which include legislating in any form. And to checkmate an overreaching Chief Executive, Art II also provides for the impeachment and removal of not only the Chief Executive, but of any and all officers comprising the Executive Branch.

Originally intended to soley direct executive departments how to faithfully implement laws legislated by Congress, since the early 20th century EO’s have morphed into imperial edicts which have little real hope of being invalidated by an unaccountable Supreme Court or overridden by a permissive Congress. In fact, in all our history only two EO’s have been successfully invalidated/overriden: Truman’s 1952 order to place all steel mills under federal control was invalidated by the Supreme Court, and a Clinton EO in 1995 which attempted to prevent the federal government from contracting with organizations that had strike-breakers on the payroll was overturned by Congress. Thus, despite their being in flagrant violation of the Constitution, while EO’s can be voided, to do so is, indeed, acutely challenging and, therefore, rarely accomplished.

Worth noting are those less appealing and unsavory EO’s such as Franklin Roosevelt’s order to remove all Japanese & German Americans from military zones, and to relocate Japanese Americans to internment camps proceeded unchallenged by either Congress or the Supreme Court.

So, how can Congress, the People’s House, void an EO, assuming Congress were so inclined?

First, Congress must have the political will, rectitude and the numbers to effectively countermand EO’s. That said, as it plays out now if Congress disapproves an EO, it can withhold funds. But, to do so requires enactment of a law which must pass muster both in the House and the Senate. The rub: if the law intended to countermand an EO is vetoed by the President, to override that veto requires a 2/3 vote, a super majority, in both chambers of Congress, clearly a politically daunting task indeed. And, of course, there is the laborious process of impeachment and removal of the offending President to remedy the executive overreach. But, again, removal would require a 2/3 majority in the Senate, a very unlikely scenario.

The alternative means of voiding an EO is if a suit is brought against the President before the Supreme Court and the court invalidates the EO, again a highly unlikely scenario. And, as we all know, the Supreme Court, which has proven to be far less than faithful to the meaning and intent of the Constitution, is often on the wrong side of constitutional questions. Seemingly guided by Chief Justice Hughes’s arrogant and insidious assertion in 1941 that “we are under a Constitution, but the Constitution is what the judges say it is”,the court’s unelected judicial oligarchs–and, yes, judicial legislators–have, over the years, proven to be unreliable defenders of the Constitution.

It should be remembered that Roger Sherman, a principal among the original framers, held that the president should not have legislative authority; that his job was to execute the laws and nothing more: “The Executive Branch is nothing more than an institution for carrying the will of the legislature into effect”.

Similarly, another leading framer, James Wilson, asserted that “the only powers strictly executive were those of executing laws, appointing officers, not appertaining to, and appointed by, the legislature.”

And upon the advice of fellow framer Charles Pinckney, none other than James Madison asserted that the president should have “power to carry into effect the national laws, to appoint to offices in cases not otherwise provided for, and to execute such other powers—not legislative or judiciary–in nature.”

In effect, the framers insisted that the Chief Executive could not propose or make legislation under any guise, but was absolutely restricted to executing those laws passed by Congress. Crystal clear, but grossly ignored by today’s power elite. With the “help”of a habitually unfaithful Supreme Court, a corrupted Congress, and a complacent citizenry, is it any wonder we’ve strayed so far afield from the Constitution?

So, in the absence of a President who might happen to be personally inclined to faithfully adhere to the Constitution, we have little defense against a tyrannical Chief Executive. Thus, if the Supreme Court and Congress are unwilling to restore constitutional order by affirmatively re-establishing the doctrine of separation of powers at the federal level, then, ultimately, and in accordance with the 10thAmendment, it falls to the States and/or the People to take appropriate action to remedy the breach. As James Madison asserted, “…the people have an indubitable, unalienable, and indefeasible right to reform or change their government whenever it be found adverse or inadequate to the purpose of its institution.”

In closing, our now tattered and barely recognizable republic which was originally held securely in place by a carefully crafted system of checks and balances and separation of powers is no more. To believe otherwise is foolhardy.

Since TR, with his 1006 unchallenged EO’s, Woodrow Wilson’s 3,723 EO’s and Obama’s in excess of 900 very frighteningly Orwellian EO’s, the imperial presidency has clearly taken on a life of its own, unchecked and tyrannical, effectively scuttling any similarity to genuine republicanism. In truth, all that holds this sham of a republic in place is the President’s appearance of faithfulness to the constitution and a pervading hope that the President, whomever he or she might be, will somehow kindly opt not to overstep his/her constitutional authority. But, if history is any authoritative guide, such self-inflicted delusion and misplaced confidence can only lead to national disaster.

Going forward, patriots everywhere had best pull out all stops to usher in a Constitution-first conservative takeover in DC. But, that’s only half the battle. Once elected, we must hold their corruptible feet to the fire to ensure a full restoration of our now mortally wounded constitutional republic, failing which only the dissolution of these united States by whatever means, violent or peaceful, is most certainly inevitable.

To be clear, EO’s aren’t a Progressive or Republican problem. EO’s are an equal opportunity contagion. Both parties, all modern presidents, Congress, the Supreme Court, and, yes, We the People are culpable. If we deserve better, we will beget better.

Federal Imperialism vs State Territorial Sovereignty

For a painfully long time now, our federal masters and their judicial enablers have ignored and, to my way of thinking, flagrantly violated the Constitution with impunity. All too often, Supreme Court rulings have served to override equity, common sense, constitutionality and original intent.

And so long as black-robed, unelected and unaccountable judicial oligarchs, aka judges–as well as the submissive states themselves–allow “judicial supremacy” to trump “constitutional supremacy” on a whole host of consequential constitutional issues, our economic growth will be hobbled, our liberties diminished, state sovereignty degraded, constitutional order imperiled and common sense abandoned.

To wit, per Art 1.8.17 of the Constitution and provisions of the Northwest Ordinance of 1787, and despite a veritable cesspool of clubby, contrived and revisionist court rulings over the years through which I was barely able to wade, it appears glaringly obvious to me that our federal overseers are occupying millions of otherwise productive acres within the several states without the “concurrence” of those states and without constitutional justification.

Article 1.8.17 (“Enclave Clause”) granted power to Congress “to exercise exclusive legislation in all case whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States [i.e. the District of Columbia], and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.” Crystal-clear what the original meaning is here despite the shamelessly self-serving litany of subsequent spinmeistering on the part of our judicial overlords, lap dogs of the federal government.

Clearly this clause meant that the people of the states empowered Congress to exercise complete jurisdiction and authority over all lands or facilities purchased within a state, provided it was with the consent of the legislature of that state, and that such lands would be used for the erection of forts, magazines, arsenals, dock yards, and other needful buildings.” Clearly implied in this clause is that the several states, the immediate fiduciary agents of the people, reserve the right to assume title to all lands within their borders which are not being used by the federal government for the specific purposes provided in the clause, that being “the erection of forts, magazines, arsenals, dock yards, and other needful buildings.” It is also important to note that nowhere in the Constitution is the federal government granted the enumerated power of complete jurisdiction and authority over state territory; thus, state retention and ownership of public lands stems from the 10th Amendment which reserves all rights to the states which are not specifically granted to Congress. The twisted and carefully crafted Delphic court rulings notwithstanding, the original meaning seems abundantly clear to me.

Art 4.3.1 allowed a mechanism for the formation and admission of new states into the union, and Art 4.3.2 described the extent of congressional authority over federal territory within those states. Subsequently, the Supreme Court ruled that federal property applies only to the territory at the time of the Constitution’s adoption and is considered public land only until that territory is granted statehood and the national debt incurred by the Revolutionary War is paid. In other words, temporary federal control over those lands.

In accordance with the Northwest Ordinance of 1787, which was re-enacted after the Constitution’s ratification, all new states were to be admitted to the union on the basis of full equality with the original thirteen states. It was generally understood that as territories were granted statehood, the people of those states would acquire title to all lands within their state boundaries—except, of course, those lands granted to the feds for those well-defined purposes cited in Art 1.8.17.

To help pay down the national debt, Congress assured the states of full title to those lands not used for federally sanctioned purposes when that land was sold off. The following then became the established policy for new states:

1. The feds would retain all ungranted public lands.

2. The feds guaranteed that it would dispose of these lands as soon as possible.

3. The new state would acquire jurisdiction over these lands as fast as they were sold to private individuals.

4. States would be admitted on the basis of “equal footing” with the original 13 states (each of which retained complete ownership/control over their respective territories.

As a result, all states east of the Mississippi and those comprising the Louisiana Purchase eventually acquired title to all but a very small portion of the land lying within their state boundaries.

However, following our war with Mexico, Congress inexplicably digressed from this policy and virtually eliminated the sale or disposal of federal lands in the western states. This resulted in Congress’s retaining major portions of those state lands, this in seemingly direct contravention of the Constitution and of the Northwest Ordinance. Essentially, the federal government became the sole owner and manager of nearly 30%, or a whopping 650 million acres, of America’s landmass, for the constitutionally Unspecified purposes of maintaining national forests, national parks, national monuments, Indian reservations, coal and oil reserves, lands leased to farmers and ranchers, and resources-rich so-called “wilderness areas”. And, of course, the cost to taxpayers for maintaining the sprawling federal bureaucracy in order to manage these federally controlled lands is in the billions of dollars.

Federal defenders of this digression breathlessly point to the so-called “property clause” (Art 4.3.2) which provides that “Congress shall have power to dispose of and make any needful rules and regulations respecting the territory or other property belonging to the United States and any territory or property belonging to the United States.” Clearly, does this not create a convenient constitutional ambiguity by contradicting the original intent of Art 1.8.17? Does this not exact restrictions on the western states, which had never been imposed on earlier states? So much for states being admitted into the union on “equal footing” and “full equality” with earlier states. Is federal retention of 30% of America’s real estate really a “necessary and proper” exercise of federal powers? For me to believe that would require a willful suspension of common sense.

To give you an idea of how much state land is now imperially held by the feds, check this out: NV 85%, AL 70%, UT, 60%, OR 53%, AZ 47%, CA 45%, WY 42%, NM 42%, CO 37%, and poor Alaska 96%! Note: 65% of federal land holdings are located west of the Mississippi and a paltry 1% of all federally controlled land in the country is currently being utilized for those specific purposes cited in Art 1.8.17. One must necessarily wonder why these lands are still being held by the feds. Pay off the Revolutionary War debt? Gee, I don’t think so. Lofty, if not entirely contrived, constitutional justifications? Or, more likely, the relentless federal grasp for power and, today, a way to placate a host of environmental allies by denying the states and the country access to those climate-warming pollutants such as oil and gas.

Regarding the Enclave Clause, James Madison stated that “the public money expended on such places, and the public property deposited in them, require that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated by requiring the concurrence of the States concerned in every such establishment.” But, have the courts sought the concurrence of the states? Nope.

Clearly, the federal government is occupying millions of acres without the “concurrence” of those states, but maintain their grip with the twisted and self-serving judicial sanction of federal Courts intent upon expanding and strengthening federal power.

So, what is the recourse of the several states? My opinion, which is shared by many other originalists, is that in keeping with the doctrine of state sovereignty, original intent and the 10th Amendment, states should simply legislatively assume title of all lands not being utilized by the federal government as specified in the Enclave Clause. Of course, to placate the courts and public opinion, states should first sue the federal government to acquire title. And since the states will not prevail in such a lopsided judicial struggle, they should then rightfully and unhesitatingly assert their 10th Amendment rights by immediately assuming direct ownership and control of what I have dubbed those “royal federal reserves” lying within their state boundaries.

But, do the chastened, weak-kneed, heavily bribed and statist-infected states have the backbone to hazard the restoration of their constitutional sovereignty and honor? Ah, yes, that’s the burning question.

The constitutional issue aside for a moment, in truth the achievement of energy, independence alone should provide ample motivation for the states and their people to step up and take back their land, which is illegally held by the feds. And should the states fail to assert their rights under the original constitution, they should quietly accept their bondage and compliantly move on with their drab, submissive lives.

“An injustice unchallenged is justice denied.” Author Unknown

“In the Constitution, the term state most frequently expresses the combined idea…of people, territory and government. A state, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.” State of Texas v White (1868)

“Nothing should ever be implied as law which leads to absurd or unjust consequences.” Abraham Lincoln (1861)