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PERRIN LOVETT

~ Fiction, Freedom, and The West

PERRIN LOVETT

Tag Archives: nullification

Always Ahead Here

05 Wednesday Sep 2018

Posted by perrinlovett in Legal/Political Columns

≈ 1 Comment

Tags

law, nullification, secession

You’re here because you like being ahead of the curve. Always. Years ahead. Almost. Sometimes…

For instance:

Nullification and Secession: Solutions or Talking Points?
An excellent legal treatise by James Ronald Kennedy, Sept. 3, 2018.

-or-

Interposition, Nullification, and Secession, Perrin, Fed. 25, 2013.

I’m more than happy when people pile on … even five and a half years behind…

Seriously – a great work – read Kennedy’s piece:

I belong to the tribe that believes nullification and secession are the only real solutions to the current out of control supreme federal government. To demonstrate the validity of my belief, I will pose and answer three fundamental questions: (1) Are the concepts of state nullification and secession legitimate American political principles? (2) Is the current supreme federal government a legitimate governing authority? and (3) Would the modern-day acceptance of state nullification and secession be so unworkable that it would destroy the United States?

Lincoln answered the first question—whether state secession is a constitutional right—with a firm negative and enforced his opinion with legions of bloody bayonets. But Lincoln (1861) was not one of America’s (1776) founding fathers; therefore, his opinion pales to insignificance when compared to the actual words of the founding fathers. Even the High Federalist Alexander Hamilton was forced to admit that the Sovereign States had the right to protect their citizens from an abusive federal government:

…

Are these (and interposition) really viable solutions? Who knows? But it’s great to further the consideration and debate.

 

The Bundy Trial: A Verdict On American Justice

07 Monday Nov 2016

Posted by perrinlovett in Legal/Political Columns

≈ Comments Off on The Bundy Trial: A Verdict On American Justice

Tags

America, Constitution, Courts, crime, Federal government, Georgia, injustice, jury, justice, law, nullification, Oregon

Two Thursdays ago, while I prepared to hit the road, a federal jury did an amazing thing. Herein I answer a reader request for commentary.

Ammon Bundy, Ryan Bundy, Shawna Cox, Jeff Banta, Kenneth Medenbach, David Lee Fry and Neil Wampler were charged and tried for “taking over” a remote federal facility in Oregon. On October 26th a jury found all defendant’s not guilty on all counts. Well, Ammon Bundy still faces a count of tampering for disabling a few cameras. But the long-term sentence charges were dismissed unanimously by the jury.

While the case and verdict is seen by some who seek limited government as a success, it really is just another example (although with a happy ending) of what is wrong with the justice system [SIC]. My summary of these proceedings is that they represent a fluke of judicial process and little more.

First, I find it a little funny that just about everyone on the right (to include many limited government advocates) pulled for the DOJ/FBI last week during the odd continuation of the Hillary email/corruption/pedo-pizza carnival of doom. It was the exact same outfit that prosecuted the Bundys. Now that Comey has once again closed the Clintongate files it is clear to anyone of room temperature IQ or higher that justice in America really isn’t. Unless there’s a slip and a fluke.

I have recounted before how the justice system [SIC] in general, and the federal system in particular, work. 99% of federal defendants are railroaded into court for crimes not set forth in the Constitution. Of those, around 97% enter into some kind of plea agreement. Of those remaining who demand and receive a trial, maybe 90% are convicted. So, within a margin of statistical error, nearly 100% of federal inmates and convicts are in prison for nothing.

That’s not justice. My thoughts on the jury system of today.

 

The Bundy bunch beat the odds here. And that is worth celebrating. From the New York Times:

PORTLAND, Ore. — Armed antigovernment protesters led by Ammon and Ryan Bundy were acquitted Thursday of federal conspiracy and weapons charges stemming from the takeover of a federally owned wildlife sanctuary in Oregon last winter.

The surprise acquittals of all seven defendants in Federal District Court were a blow to government prosecutors, who had argued that the Bundys and five of their followers used force and threats of violence to occupy the reserve. But the jury appeared swayed by the defendants’ contention that they were protesting government overreach and posed no threat to the public.

You may recall that one associate, LaVoy Finicum, was murdered by police as the others were arrested – gunned down in cold blood. Eleven others, playing the statistical game, plead guilty prior to the Bundy trial.

The government had a huge mountain of evidence. The defenses were rather maverick. And they could be as all that evidence still did not establish much. Frequently, when they don’t simply manufacture evidence and testimony from thin air, Justice [SIC] will overload a jury and hope the members become confused. Most do. Not here. In a remarkable turn of events, this jury actually paid attention and gave real thought to what they heard and saw.

Roger Roots, there in person in court, chronicled the various outrages and the unlikely outcome:

The defendants were accused of conspiring to prevent employees of the U.S. Fish & Wildlife Service and Bureau of Land Management from performing their duties at the Malheur National Wildlife Refuge in rural eastern Oregon. Yet federal prosecutors failed to produce a single piece of evidence of any specific threat aimed at a USFWS or BLM employee.

The U.S. Justice Department alleged in Count 1 that the seven defendants (and many others) had engaged in an “armed standoff” at the federal wildlife refuge with the intent of scaring away the various government employees who normally work there. Every defendant was utterly innocent of the allegation. Some were not even aware that federal employees normally worked there). Several defendants were also charged with firearm possession in federal facilities with the intent to commit a federal felony (the conspiracy alleged in Count 1). And two defendants, Ryan Bundy and Ken Medenbach, were accused of stealing federal property valued over a thousand dollars.

In fact, Ammon Bundy and the other defendants took a monumental (and quite daring) stand for the plain text of the Constitution when they occupied the Malheur Refuge in January of this year. They pointed to Article I, Section 8, Clause 17 of the U.S. Constitution which seems to plainly forbid the federal government from owning land inside the states unless the states agree to sell such real estate to the federal government.

Needless to say, the present reality in the American west is in sharp contrast to this piece of constitutional text. The feds claim to own and control millions of acres of land in western states—most of which (such as the Malheur Refuge area) was never purchased from state legislatures or anyone else.

The most frightening revelations from the Malheur 7 trial involved the lengths which the U.S. government went to in its prosecution. During the Bundy occupation, the FBI literally took over the tiny nearby town of Burns, Oregon and transformed it into an Orwellian dystopia. There were license plate scanners mounted on utility poles, drones throughout the skies, and military transport vehicles speeding across the countryside. FBI agents captured and monitored every phone number connected between every accused occupier. Federal and state police appeared in such numbers that their total numbers will probably never be fully tallied.

The occupation was met with a bonanza of government spending by agencies at every level. The U.S. Fish & Wildlife and BLM employees who were supposedly too frightened to go to work were put up in luxury hotels, along with their families. (In the aftermath of the occupation, the feds have spent further millions to “rebuild” the Refuge, supposedly because the occupiers tainted it; prosecutors were openly planning on asserting the inflated “bill for damages” at sentencing in the event the defendants were convicted.)

Most startling of all were the undercover government informants that were revealed in the trial. After weeks of wrangling and arguing with defense lawyers, the Justice Department finally stipulated that at least nine undercover informants were planted among the Refuge occupiers. Thus, informants outnumbered the defendants on trial. One informant was even a “bodyguard” for Ammon Bundy and drove him to his arrest. Another informant admitted he trained occupiers in shooting and combat skills.

After a week of deliberating over the evidence, the jury came back with its verdict yesterday afternoon, acquitting every defendant. (Jurors said they were divided regarding an accusation that Ryan Bundy aided and abetted the theft of government property when he and others climbed utility poles and took down two of the government’s surveillance cameras.)

There are reports that the U.S. Justice Department spent $100 million on the case. But twelve Americans saw through the government’s cloud of disinformation and dealt a mighty blow for liberty.

I would call this less of a mighty blow for liberty and more of a small blow for jury nullification. John Whitehead agrees:

In finding the defendants not guilty—of conspiracy to impede federal officers, of possession of firearms in a federal facility, and of stealing a government-owned truck—the jury sent its own message to the government and those following the case: justice matters.

The Malheur occupiers were found not guilty despite the fact that they had guns in a federal facility (their lawyers argued the guns were “as much a statement of their rural culture as a cowboy hat or a pair of jeans”). They were found not guilty despite the fact that they used government vehicles (although they would argue that government property is public property available to all taxpayers). They were found not guilty despite the fact that they succeeded in occupying a government facility for six weeks, thereby preventing workers from performing their duties (as the Washington Post points out, this charge has also been used to prosecute extremist left-wingers and Earth First protesters).

Many other equally sincere activists with eloquent lawyers and ardent supporters have gone to jail for lesser offenses than those committed at the Malheur Refuge, so what made the difference here?

The jury made all the difference.

These seven Oregon protesters were found not guilty because a jury of their peers recognized the sincerity of their convictions, sympathized with the complaints against an overreaching government, and balanced the scales of justice using the only tools available to them: common sense, compassion and the power of the jury box.

Jury nullification works.

It works when it is applied by an intelligent jury. The problem is in the empaneling of such jurors. Again, here we saw a fluke. And the Bundy’s troubles are not ended. Ammon still faces the remaining federal count and the whole crew faces persecution in the Oregon state system (because Double Jeopardy is an outdated concept and the prohibition has all but vanished in America).

The odds of successfully assembling such a conscious jury elsewhere are slim at best. I always drew the jury pool analogy this way: go to any Walmart around midnight; pick out the first 12 shoppers you see; that is your jury. The results are predictable. Most juries favor whatever the government presents, truthful or lawful, or not. If they have doubts, the system is rigged in the government’s favor – rigged to obscure exculpatory evidence, limit defense arguments, and limit legal knowledge and questions from the jury.

jury-cat

This is more like it. College Humor.

It’s fortunate I had a little time to draft this up. I found an unrelated, recent, and far more typical case for comparison.

Four defendant’s in Richmond County, Georgia were charged with various counts of felony Medicaid fraud and a count of conspiracy to commit the frauds. The indictment said they defrauded the government program (itself nothing but a fraud) of more than $3 Million.

All four were acquitted last week of the underlying fraud charges. Three were acquitted entirely. The fourth, the alleged ringleader, was found guilty by the jury of the conspiracy count. He was promptly sentenced to the maximum prison term allowed, five years.

Here’s the problem here for justice. Under Georgia law, “A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.” O.C.G.A. 16-4-8 (2010)(emphasis mine).

If all parties were on trial together and the jury acquitted all but one of them of all charges, how then could the same jury find that the lone defendant acted as part of a conspiracy? There’s that elements of the law thing that isn’t met here. The judge should have entered a directed verdict of acquittal as to the last conspiracy count, a correction of jury fallibility in the interests of justice.

Such interest is a rare as the Bundy verdict. Georgia appellate courts (and others around the nation) have ruled such inconsistencies (illegalities) are allowable. They seem to regard them as a consolation prize for the state, which isn’t suppose to lose. The overall stats for state charges and trials mirror the federal trends closely.

Of these two cases, the latter is the standard, the former a fluke. A happy fluke but just that. I don’t see any greater awakening. However, given recent developments against the establishment (Trump, BREXIT, etc.) such a movement may be launching. If so, we must do everything we can to foster and support it. If you find yourself on a jury, take the government to task.

One never knows when one will find oneself seated at the Defendant’s table. Safeguard others’ liberty today as yours might be on the line tomorrow.

Support truth, freedom, and justice.

One Good Thing About a Gas Shortage

18 Sunday Sep 2016

Posted by perrinlovett in Legal/Political Columns, Uncategorized

≈ Comments Off on One Good Thing About a Gas Shortage

Tags

freedom, Georgia, government, interposition, law, nullification, regulation, States

It’s not everyday one sees a State Governor nullify a federal regulation.

nimbus-image-1474242035392

GA Gov. Nathan Deal, 9/13/2016.

Yes, it’s just one reg. about hours for truckers under the Motor Carrier Safety Administration. And, yes, it is allowed by a concomitant reg. But, can’t an anarchist dream?

What if the states gave us a little more protection via nullification and interposition? What if? Some essentially do this with MJ and a few may try with firearms. My suggestion would be the income tax and the National Guard next.

BTW, there is still gas out there and, outside of the larger cities, the gouging isn’t that bad.

Presidents and Alternatives

03 Saturday Sep 2016

Posted by perrinlovett in Legal/Political Columns, News and Notes

≈ Comments Off on Presidents and Alternatives

Tags

America, election, freedom, government, GQBM, interposition, nullification, President, secession, The People

The esteemed Thomas DiLorenzo takes a look at a new book by Clyde Wilson on the benefits of ditching Washington national political craziness.

In his new book Nullification: Reclaiming Consent of the Governed, Clyde Wilson pinpoints the folly and futility of “presidential politics” – of hoping against hope that some Great Savior will somehow restore American liberty. Only those who are almost completely ignorant of American history could be fooled by such a farce. Unfortunately, that seems to include most Americans.

Early Americans were never so naïve as to believe that national politicians could preserve their freedom; that was their job. They are the ones who, acting through their state-level political societies, created and gave authority to the Constitution. The government was to act as their agent and was delegated by them only a few specific powers. Moreover, the government itself could never be the judge of its own powers, for that would lead to “nothing less than a government of unlimited power, a tyranny,” writes Wilson. Of course, that is what Americans have now lived under for generations with the “black-robed deities” of the “supreme” court announcing for all of us what freedoms we shall have.

Yes, he left out Interposition, but that is here forgivable.

The time for effective (for Liberty) presidential politics has long since come and gone. As the masses are unlikely to support or even understand these concepts, I recommend personal secession. It’s almost effortless and does not require waiting on a hero, the people, or any statesmen.

In related news, Chuck Baldwin lists his top ten worst presidents of all time. They are:

  1. Imperial Abe;
  2. Wilson the Destroyer;
  3. F. “Dammit” R.;
  4. Lyndon “Bane of Freedom” Johnson;
  5. Jorge “PATRIOT ACT” Boooosh;
  6. “Hopey Changey”;
  7. Slick Willy;
  8. Bush the Vomitor;
  9. Brick Head Grant; and
  10. Tricky Dick Nixon.

You probably have a similar list. These numbers could be shuffled – especially below number 3. And another ten could easily be added – each with his own cool nickname. You’ll surely notice Baldwin’s choices are heavily weighted towards the modern era. This underscores the futility in waiting and hoping for a savior.

TrumpBClinton

Nothing rigged. Nothing to see. Vote along now.

The GQBM is right around the corner. One proposed candidate is talking the talk while the other can barely walk. I don’t like the odds. Thus, I don’t play the game.

Speaking of games, the great football trial starts in earnest today. Odds ain’t looking to good there either.

Onward!

Interposition, Nullification, and Secession

25 Monday Feb 2013

Posted by perrinlovett in Uncategorized

≈ 5 Comments

Tags

10th Amendment, 16th Amendment, 17th Amendment, 1984, 19th Century, Act, America, collapse, Congress, Constitution, Constitutional Convention, Constitutional Law, Courts, D.C., Declaration of Independence, Farenheit 451, Free Vermont Republic, George W. Bush, Georgia, government, history, interposition, judicial review, Kentucky Resolution, King George, law, Liberty, Lincoln, Marbury v. Madison, McCain-Feingold, military, Mittens, Montana, morons, murder, Nazi germany, nullification, ObamaCare. Supreme Court, politics, Republicans, Romney, secession, Soviet Union, States, stupidity, tax, The People, Thomas Woods, tyranny, U.S.A., Union, Virginia Resolution, voting, War

Last year I started this humble blog with a short column on the unGodly ObamaCare decision from the Supreme Court, https://perrinlovett.wordpress.com/2012/06/28/the-shared-responsibility-tax-obamacare-a-hit-with-the-supremes-4/.  ObamaCare is not about healthcare for anyone.  It is merely an Insurance Company welfare scheme with taxes that no-one knew were taxes (not even Obama) and bankruptcy-inducing mandates. 

At the end of that early missive I promised to cover possible solutions to the mounting problem of federal tyranny.  Specifically, I named interposition, nullification, and secession as possibilities.  Let’s talk about those now, briefly.

Well, first let’s see how the Republicans did with reversing the law as they boasted they would.  I recall some GOPer saying they would overturn the nightmarish law before the Supremes even got to rule on it.  Didn’t happen.  After the ruling they said they would eliminate the massive tax act before their chosen man, Mittens Romney, the founder of the ObamaCare School of Medicine, won the election.  None of that happened either.  With the nation staring down the barrel of a potentially economy-wrecking gun, they said they would stop the law before it took effect on January 1st of this year.  Having proven themselves to be lying, delusional idiots, we can write off the buffoons of the Elaphantitis party.

Back to my proposals – I’ll take them in the order I first set forth, as that seems to be the hierarchy from least to most extreme.

Interposition

Interposition is a process whereby a State of the American Union declares an Act of Congress or some other federal action to be UnConstitutional and positions itself as a shield between the feds and the citizens of the State.  Wikipedia says that the federal courts have held this an illegitimate theory and that only they have the power of Constitutional review – “Judicial Review.”  See: http://en.wikipedia.org/wiki/Interposition.  Wiki doesn’t mention it by name, but the theory of Judicial Review originated, federally speaking, in the case of Marbury v. Madison, 5 U.S. 137 (1803).   Maybe you’ve heard of this landmark case, students of “Constitutional Law” are taught to revere it.  I was never impressed. 

First, this was one of a shady series of early Supreme Court cases concerning personal profits unfit for court review at all.  Second, if this case did deserve formal investigation and resolution, then such should have been undertaken by the political branches whom the matter concerned anyway.  Third, and most importantly, judicial review by the federal courts is a legal fiction.  Nowhere in the Constitution is the right granted the courts to rule so authoritatively on our laws.  Had the Framers intended such power, they would have written it in; several State Constitutions do grant this power to State Courts (Georgia, for example).

I do not withhold the ability of any court to say a law is UnConstitutional.  Courts should point such out when discovered.  In fact, any branch may make that determination.  President Bush, the Dimmer, said that the McCain-Feingold Campaign Finance law was UnConstitutional, then signed it anyway.  Before that, obviously, Congress had deliberated on the law and must have sensed its illegality.  Bush remarked that the Supreme Court would have to make the ultimate determination.  They did.  Ironically, the Court essentially said (and rightly) the law concerned only the political branches and since both had approved the measure, they would too out of deference.  I had an outrageously humorous “discussion” about this fiasco with a political celebrity in 2004; I’ll relate that in a future post.  This was a case of government gone wild.  Of the three branches, law-making is the art of Congress; correcting bad laws is also.

Anyone who can read and think can declare a law within or without the bounds of the Constitution.  I do it all the time.  However, my power of enforcement is rather weak to say the least.  The theory of interposition, and that of nullification, comes from the ability of the States to so declare a law.  Their power is greater than mine and their authority is a bit more grounded than that of the Courts.  “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.”  U.S. Const., Amendment 10.  UnConstitutional laws are those based in authority which is not among those very few expressly Constitutionally delegated powers of the national government ,and thus, are within the purview of the States to affect.  The Tenth Amendment’s reference to “the people” is as fuzzy a concept as anything else in man’s law.  Ultimately, under our form of republican government, the people have the final say on authority as exercised by their voting.  The people prove time and again to be useless guardians of their own liberties.

Interposition was made famous long ago by the Virginia and Kentucky Resolutions (1798), which declared the States’ ability to invalidate federal law.  The practice was used to various effect in the 1800’s.  Times have changed dramatically (for the worse) since that Century, with the States giving away a great deal of their former power.  There was also the matter of the war between the States which decided by force and murder, rather than by law, some of these issues. 

Nullification

Nullification is essentially Interposition but with an added declaration by a State or States they will not enforce a federal law or allow enforcement within their territory.  This theory was set forth also by the afore-noted Resolutions.  It has been erroneously dismissed by the courts.  And, it would seem to reside in a previous time.  The theory has raised its head recently though, as it does from time to time.  A few States have begun to void federal laws in principle at least.  Montana, for example, has decided that certain federal firearms laws do not apply within the Montana state lines.  It remains to be seen whether Montana or other modern States will actually take any action necessary to give life to their declarations.

In the old days, States did just that.  The 19th Century was repeat with State and local agents boldly denying the federal government on certain matters.  When a federal agent or officer appeared to enforce a particular objectionable action, the locals would run the fellow out of town on a rail, literally sometimes.  A great read on the subject is Thomas Woods’s Nullification (2010), http://www.amazon.com/Nullification-Resist-Federal-Tyranny-Century/dp/1596981490. 

Again, with the demise of State power and authority in general (see the 16th and 17th Amendments, etc.) the plausibility of nullification seems a dim prospect. 

Secession

Dimmer still, is the ultimate practice of State dissent.  The original 13 colonies of England, once they had declared their independence from the King, became 13 independent nations.  They joined together to fight the Revolutionary War and then entered into a Federation for mutual benefit.  A federation is a group of sovereign entities which come together for some purpose; they remain sovereign.  The Constitution changed none of this.  No language therein makes the federal union permanent and eternally binding upon the member States.

Should a State find itself at unacceptable odds with the central government, it has the power to dissolve its connections and become a completely separate nation again.  Several State assemblies expressly said so when they ratified the Constitution.  This is in complete keeping with the spirit of the Declaration of Independence, just substitute U.S.A. for King George, III. 

Again, and again and again, the States have not only given up power to Washington over the years, they have also become somewhat dependent on D.C. and tend to exhibit a slavish loyalty thereto.  This all renders the prospect of a State succeeding in the 21st Century remote.  There are secessionist movements in some States, like the Free Vermont Republic.  The FVR even has its own flag, but little chance of success. 

There is also the specter of Mr. Lincoln’s illegal war.  The war decided nothing formally or legally.  Wars are not rational undertaking, just pure contests of military power.  Since 1865 the several States have all but abandoned their military power while Washington has assembled the most awesome and dreaded arsenal in the history of mankind.  While secession remains a perfectly legal option, the odds of success do not favor the States.

Where We Are

In today’s political climate none of these three solutions are likely to receive formal discussion by the several States, let alone action.  Deprived of legal and political solutions, what then are we to do? 

Some people with means are beginning to leave the United States for smaller, freer countries.  I do not begrudge them their decisions.  However, I do not like the idea of being run out of my homeland and into a foreign country where, as history dictates, anything can and will happen.  In a way, I would rather stay and face the devil I know here.

There is always the ability of the States or of Congress to call for a new Constitutional Amendment or even a Convention wherein objectionable laws might be remedied.  Amendments are hard to pass these days.  It’s hard to get Congress or the legislature of any State to act productively or intelligently.  Honestly, the idea of a new Constitutional Convention scares me.  While one could hypothetically end with great advances in Liberty, such as returning to the Articles of Confederation or just eliminating the national government completely, I fear, given the weakness of the people and their representatives, we could end up with something far worse.  Imagine 1984, Farenheit 451, Nazi Germany and the old Soviet Union all rolled into one!

Every two years or so the citizens of the States have the opportunity to turn out at least a third of the federal government’s elected morons.  The power to change the government lies with the people by their dismissing representatives who do not do their bidding.  The people must not be aware of this authority or else, they must approve of their government as is.  Options grow thin.

Time will eventually change everything.  5,000 years from now most people living won’t remember the United States.  Given the self-destructive tendencies of our government, it is likely we need not wait that long.  Either way, awaiting the inevitable collapse of leviathan, like expectations of the end of days, is tedious at best.

I’ll see if I can come up with something else more actionable.  You work on it too.

Perrin Lovett

perrinlovett@gmail.com

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