Recently I blogged about a bill introduced by State Rep. Joe Carr , explaining that his bill would require local law enforcement
agents to arrest any federal agents enforcing such new laws or regulations within Tennessee. I opined that
such a bill would be unconstitutional because it would violate the supremacy
clause of the Constitution. A couple of prominent
conservative activist took exception to my critique and denounced me.
Daniel Horwitz, an occasional guest contributor to this blog, came to my defense explaining that my critique was accurate and documenting his reasons for saying so. Now comes Tracy Tatum to critique
Daniel Horwitz. Since I am certain that
both the content and tone of Tracy's essay reflects the view of many in the
conservative activist community and wishing to further dialogue and discussion,
I am posting his essay. Rod
Tracy Tarum critiques Danial Horwitz's defense of federal supremacy over States rights
by Tracy C. Tarum
 |
| Tracy C. Tarum |
Congratulations Mr. Horwitz on being a law student at
Vanderbilt. I was actually quite relieved
to read that you’re still in school; I feared while reading your response that
you were a supposed “expert”. Because while your response was by no means
completely invalid, neither was it completely valid or entirely accurate.
For example – are you asserting as indisputable fact,
that if the federal government passes legislation instituting a two child
maximum per family and any child born thereafter will be killed; and if a
federal organization is established to enforce the policy; and a States’ Legislature
passes legislation stating that it will arrest any federal agents attempting to
enforce said legislation: then those States’ Legislators and Governors are
“clearly” in violation of federal law and subject to imprisonment, and that
this assertion is “not subject to debate?”
You may not realize it, but that
is what you
asserted when you state unequivocally that “the U.S. Constitution plainly
states that ‘the Laws of the United States… shall be the supreme law of the
land…laws of any state to the contrary notwithstanding’…[and] this provision…means
that whenever a state law conflicts with a Federal law, the Federal law takes
precedence…” – and cite other sources to further that assertion. But you missed this
very important line in one of the statements you cited,
which negates your other sources; “…that blocks enforcement of an
otherwise
enforceable Federal law…”
No, the States and their members of government would not
be criminals in that instance because – 1.) such legislation would be a clear
violation of the Natural rights of the States’ citizens; and 2.) the federal
government would be acting outside its specifically enumerated powers. Likewise, no State would be in violation of
the law for arresting federal agents attempting to disarm the populace, as that would be a clear violation of the Natural rights of the citizens and of the clearly enumerated 2nd Amendment.
The federal government
was established to deal with matters
international, settle disputes and promote harmony between the several States
or members thereof against other States, and to provide other necessities which
contributed to the efficacy of this vision – a common defense, standard and
dependable currency, system of post roads, etc. (all of which are enumerated in Art. 1, Sec. 8) – while the States would remain
responsible for internal domestic matters.
When the federal government attempts to enact legislation outside of their
few and enumerated powers, such attempts are in effect null and void. So yes, laws passed by the government
“of the United States…shall be the supreme law of the land…laws of any state to
the contrary notwithstanding” when they fall within its enumerated limitations;
but are nugatory when outside those limitations.
To put it another way: if our federal government wrote
laws interfering with Canadian citizens and tried to enforce them, Canada would
likely pass legislation demanding that any American official attempting to enter
their borders and enforce such legislation would be arrested and prosecuted. Well the same is true of any legislation
created by the federal government within our own borders, if it oversteps their
enumerated powers. I’ll go out on a limb
and assume they’ve not covered that yet in your three years at Vandy. Perhaps they were waiting for the fourth year
to cover that…
You seem to assume that the federal government has power
over the sovereignty of the States on domestic matters not enumerated. Perhaps you should give a “once-over” to the
entire Constitution, but especially to the 9th and 10th Amendments.
(Glance at the Federalist and Anti-Federalist Papers, Madison’s Notes
of the Convention, writings of Madison, Jefferson, Washington, Franklin, etc., Bastiat’s
“The Law,” and John Locke’s 2nd Treatise on Civil Government as well
.) You can quote Justice Taney all
you want, and assume that the federal government has some carte blanche power
to do anything it pleases regardless of its enumerated powers and States’
sovereignty, and that States ignoring these oversteps would somehow be “a
solemn mockery;” but you would be very incorrect as a matter of fact.
And forgive me if the words “Chief Justice” don’t make me
stand at attention and throw accolades of adoration; I’ll instead stand with
Thomas Jefferson on this one. In
discussing the overstepping of the federal government through intentional
misuse of the “necessary and proper” and “general welfare” clauses in his own
day, Jefferson stated in regard to, “
To lay taxes to provide for the general
welfare of the United States,” that;
“the general welfare [is] the purpose for which the power is to be
exercised…To consider the latter phrase, not as describing the purpose of the
first, but as giving a distinct and independent power to do any act they
please…would render all the preceding and subsequent enumerations of power
completely useless. It would reduce the whole instrument to a single phrase;
that of instituting a Congress with power to do whatever would be for the good
of the United States…certainly no such universal power was meant to be given
them. It was intended to lace them up straightly within the enumerated powers.”
Also, don’t make the assumption that outside of Vandy’s
campus, titles such as “Law Professor” or “constitutional law scholar” carry
weight. They render as much inherent
respect in the real world as “Chief Justice.” (Let’s not forget Mr. Obama is an
alleged “Constitutional scholar.”) To most
of us in the real world, those titles mean very little in terms of proficiency
or knowledge in a subject – ESPECIALLY when applied to someone in a University! Case in point: you clearly revere these “titles”
as having taught you supposed “facts” which are “not subject to debate;” yet they
are subject to much debate, and some are hardly facts at all. If I may offer
you some free advice – study original sources and think for yourself; don’t let
others tell you what to think or believe.
Jefferson wrote;
Question with boldness even
the existence of a god; because, if there be one, he must more approve of the
homage of reason, than that of blindfolded fear…neither believe nor reject
anything because any other persons, or description of persons have rejected or
believed it.
But what disturbs me the most is when an aspiring barrister, from
a “top University,” thinks that State governments resisting federal governments’
encroachment is an “offense” worthy of prison!! A far cry from the ideals
expressed in the document which produced these words –
We hold these truths to be self-evident, that all men…are endowed by
their Creator with certain unalienable Rights, that among these are Life,
Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men,
deriving their just powers from the
consent of the governed, --That whenever any Form of Government becomes destructive of these ends,
it is the Right of the People to
alter or to abolish it, and to institute new Government, laying its
foundation on such principles and organizing its powers in such form, as to
them shall seem most likely to effect their Safety and Happiness…”
Assuming that State and federal governments jockeying for the
proper role and levels of power justifiably carries a prison sentence for the
legislators involved –
especially when the imprisonment is
only applicable to those on the State level – is a level of absurdity I cannot
wrap my mind around. Benjamin Franklin
stated that “resistance to tyrants is obedience to God” – apparently you
believe that subjection to government is the duty of mankind…so long as it’s a
big government. The more I think through
this, the more it scares the
bejeezuz out of me that one day, like
many attorneys, you may have aspirations for public office…
And one final observation: I notice that you quoted
judges, scholars, professors, court cases – yet did not once mention a Founder
or Framer, or quote or refer to an original source – other than to chastise and
lecture Jefferson and Madison. Coupling this observation with a knowledge of
what’s taught in most law schools, I’ll go out on a limb here and assume that you’re
not being taught the
Constitution, but
case law; not learning the minds of
the men who
wrote the documents, but taught
the opinions of people who’ve interpreted the words written by those men –
often with the intent of intentional misinterpretation for personal or
political agendas – i.e. “
Wall of
separation…” It’s clear to me why your understanding of the proper and
intended role of the federal government as established by the Constitution is
skewed. “
Question with boldness…”
If you feel there was condescension, arrogance, or
sarcasm in my response, you are correct – but only to a level comparable with
yours in your statement and attitude towards Tami and Glen. They have put FAR MORE time, sweat, and blood
into the trenches of fighting for Liberty’s torch than you’ve dreamed of – and that
goes for Rod as well. Rod, Tami, Glen,
me and many, many more may not always agree on everything – but we’ve all got
skin in the game. That counts for a lot
more than three years of University indoctrination in my book. Getting accepted to Vandy is an honor, but
you might consider shelving your arrogance until you’ve actually achieved something.
Now go finish drying yourself off – you missed a spot
behind your ears…
Tracy Tarum is an
Aircraft Avionics Technician who has extensively studied Natural rights and the
origins of Liberty, and is active in many groups desirous of a return to these
principles and Republican forms of government consistent with honoring and protecting
them. He can be reached at
tctarum@aol.com.
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