A pragmatic path to independence

NH Exit
#41

Earlier I uploaded a file called “Detailed analysis”.
The file as uploaded contained the main stream of the discussion, but later I "reply"ed with legal definitions of “treason” and “levying war”, and added a note about the First Amendment Defense that was not included in the uploaded file.

I believe these definitions, and the First Amendment Defense are important to take into consideration. Herewith is the amended file, to include the previously omitted material.

Detailed analysis.odt (44.7 KB)

#42

I think i will put this thread into an audio reader after it has grown in size a bit… I’m projecting that there will be more of your writing in the future than there is now :slight_smile:

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#43

I just found this site – fascinating!!! - devoted entirely to secessionist movements in America!

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#44

This is long list from the Middlebury Institute, of current secessionist activity around the country.

#45

The discussion in this thread up to now has focused on seceding, or reaching independence, through a sudden, single piece of legislation, or declaration of independence.

There are more gradual approaches that are perhaps far more practical. The practice of state nullification of federal law. How does that work?

“In a nutshell: (1) State officials need not enforce federal
laws that the state has determined to be unconstitutional;
nor may Congress mandate that states enact specific laws.
But (2), states may not block federal authorities who
attempt to enforce a federal law unless a court has held
that the law is unconstitutional. And (3), individuals are
not exempt from prosecution by the federal government
just because the state where they reside has legalized
an activity or pronounced that a federal law is unconstitutional;
if convicted, individuals can attempt to vindicate their
constitutional rights in court.”
https://www.cato.org/commentary/yes-states-can-nullify-some-federal-laws-not-all

Nullification has been happening around in the U.S. for some time. Marijuana and other drug laws, abortion, gun control, civil asset forfeiture, etc. have all seen attempts at nullification. In New Hampshire, I believe that there has been some movement to prevent law enforcement from supporting federal agents at checkpoints near the Canadian border. We’re a bit behind on the marijuana issue.

While many legislators here are attempting to eliminate oppression of our liberties from the state, I believe that we should also have a second focus, that of passing legislation to prohibit New Hampshire law enforcement at all levels from “aiding and abetting” federal law enforcement in the prosecution of their duties here in the state.

If the federal government wants to enforce its own laws, we can’t stop them, but we also don’t have to help them.

However, understand that interfering with with federal agents while they are enforcing federal law is, I believe, rebellion, as defined under 18 USC 115, as discussed above.

Using nullification as a stepping stone to independence, with a final declaration of our independence, is, I think, the best way – my opinion.

#46

New Hampshire, 2011:

“The New Hampshire House recently passed resolutions
calling for the United States to withdraw from the United
Nations and from the North American Free Trade Agreement,
more commonly known by its acronym, NAFTA. And on
Wednesday the New Hampshire House approved a resolution
asserting the right of the state to nullify within its borders
any act of the federal government it finds unconstitutional.”

“The nullification resolution, passed by a vote of 242-109,
holds that the state is not obliged to follow any federal law
that exceeds the constitutional authority of Congress to
enact, and declares such laws “altogether void and of no
force” in New Hampshire. Opponents of the measure
derided it as a foolish effort to re-fight the Civil War.”

#47

From New Hampshire (date unknown; 2010?):

Any public servant of the State of New Hampshire as
defined in RSA 640:2 that enforces or attempts to
enforce a act, order, law, statute, rule or regulation of
the government of the United States upon a personal
firearm, a firearm accessory, or ammunition that is
manufactured commercially or privately in New Hampshire
and that remains within the State of New Hampshire shall
be guilty of a class A misdemeanor."

This grew out of the commerce clause, which New Hampshire claimed did NOT cover intra-state commerce.

#48

February 28, 2013:

#49

February 6, 2021:

#50

South Carolina Ordinance of Nullification, November 24, 1832

https://tenthamendmentcenter.com/historical-documents/south-carolina-ordinance-of-nullification/

https://catalog.archives.gov/id/595389

#51

The list of things that the federal government may or is allowed to do, by the constitution, is very small, and is relegated to the realm of international and interstate relations, coin of the realm, paying debts, and the military. There are a few other things, like controlling the post office and building a capital city, patents and copyrights, etc., mostly trivial.

So what things has the federal government interfered with that we might consider unconstitutional. The list is long.

There is no right of the government enumerated in the constitution with respect to:

health
medicine
education
food production
drugs
sexual morality (see the Mann Act; prostitution; pornography; etc.)
automobile safety
occupational health and safety (OSHA)
morality (in general) - also might come under the first amendment “prohibiting the free exercise” of religion
racial/ethnic integration laws

I’m sure that many other things could be added to this list. Nearly everything we engage in on a day-to-day basis is not explicitly permitted to the federal government in the constitution.

The possibilities for nullification are practically endless.

#52

Some would suggest that at least abortion should be covered by an amendment to the constitution. But many consider this a case of health/medicine, some say murder, etc.

“Bills like HB 2154 in Washington, HB 1089 in Indiana, HB 361 in Idaho, SB 13 in Oklahoma, and HB 1075 in Colorado have all been introduced in the first 60 days of this year seeking to override Roe. These nullification bills can look like pure political theater as they have little legal foundation—but they’re actually deviously clever. Because neither access to abortion nor a definition of life is explicitly referenced in the U.S. Constitution or federal law, the sponsors of these bills make their case that states have the power to legislate both, per the Tenth Amendment‘s granting of state authority.”

Murder is covered by federal regulations only in very limited circumstances, which do not include abortion:

"Murders which will become potential federal
crimes are those which occur in the special
maritime and territorial jurisdiction of the
United States. ![Federal Murder Defense
Attorney 18 U.S.C. § 1111|300x200]
(https://cdn-ciood.nitrocdn.com/JsNsFohrEaImwuWBiTYKVURjJvhFinqM/assets/static/optimized/rev-85020f3/wp-content/uploads/2020/06/federal-murder.jpg)

“This could include murders which occur aboard ships in United States territorial waters, aboard airplanes under the jurisdiction of the FAA, or murders which occur in national parks or on military bases, which are places in which only the federal government has criminal prosecutorial authority.”

It seems apparent that abortion is very much NOT within the jurisdiction of the federal government.

#53

Earlier I commented that what secession really does is withdraws legal jurisdiction of the federal government from a given state/territory of the United States.

State nullification of federal laws seeks to do the same thing through peaceful constitutional means.

New Hampshire peaceful separation can be started through the use of nullification.

An early commentary on the conflict between state and federal powers was addressed by James Madison in the Federalist Papers, numbers 45-46.

https://guides.loc.gov/federalist-papers/text-41-50

#54

There have been warnings about taking nullification too far. Regarding the Firearms Freedom Act in New Hampshire, The New American gives this warning:

Finally, another potential pitfall lies in the possibility of someone
taking the state nullification movement too far in the wrong direction.
The goal of nullification should simply be inaction when the feds
want action; however, some newer nullification legislation has
become more forceful. A Firearms Freedom Act has been introduced
in New Hampshire that contains the following clause:

Any official, agent, or employee of the government of
the United States, or employee of a corporation providing
services to the government of the United States that
enforces or attempts to enforce a act, order, law, statute,
rule or regulation of the government of the United States
upon a personal firearm, a firearm accessory, or ammunition
that is manufactured commercially or privately in New
Hampshire and that remains within the State of New
Hampshire shall be guilty of a class B felony.

The bill’s prime sponsor, state Representative Daniel Itse,
said, "This is about protecting the rights of our citizens when
the federal government has no jurisdiction.” This is the first
FFA in the nation where federal officials could be criminally
prosecuted for trying to enforce federal firearms laws. While
that might sound good to some, the states need to be cautious
about appearing as the aggressor. One false move could tarnish
the state sovereignty movement and forever damage the cause
in the court of public opinion. The key to successfully using
nullification is to expose the federal government as the aggressive,
unconstitutional usurper, and states would be wise to not directly
confront them.

#55

There are these two articles from Granite Grok regarding making New Hampshire a 2a sanctuary through nullification:

#56

I’ve only just found this, and had never heard of it before. It appears that the island of Nantucket might have been the first part of the United States to actually secede from the Union.

At first glance it seemed like Nantucket was simply rebelling. But then I saw this:
"Nantucket also agreed not to pay any taxes to the federal or state government."

#57

Article I Section 8
The Congress shall have Power
To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this
Constitution in the Government of the United
States, or in any Department or Officer thereof.

Those foregoing powers are enumerated previously in the same Section 8.

(emphasis mine)
Under Article II of the Constitution, the president
is responsible for the execution and enforcement
of the laws created by Congress. Fifteen executive
departments — each led by an appointed member
of the President’s Cabinet – carry out the day-to-day
administration of the federal government.
They are joined in this by other executive
agencies such as the CIA and Environmental
Protection Agency, the heads of which are not
part of the Cabinet, but who are under the full
authority of the President. The President also
appoints the heads of more than 50 independent
federal commissions, such as the Federal
Reserve Board or the Securities and Exchange
Commission, as well as federal judges,
ambassadors, and other federal offices. The
Executive Office of the President (EOP)
consists of the immediate staff to the President,
along with entities such as the Office of
Management and Budget and the Office of the
United States Trade Representative.

Article II Section 2 (emphasis mine)
The President shall be Commander in Chief of
the Army and Navy of the United States, and of
the Militia of the several States, when called into
the actual Service of the United States; he may
require the Opinion, in writing, of the principal
Officer in each of the executive Departments,
upon any Subject relating to the Duties of their
respective Offices, and he shall have Power
to grant Reprieves and Pardons for Offences
against the United States, except in Cases of
Impeachment.

(emphasis mine)
“The Constitution neither establishes administrative
agencies nor explicitly prescribes the manner by
which they may be created.** Even so, the Supreme
Court has generally recognized that Congress has
broad constitutional authority to establish
and shape the federal bureaucracy. Congress
may use its Article I lawmaking powers to
create federal agencies and individual offices
within those agencies, design agencies’ basic
structures and operations, and prescribe,
subject to certain constitutional limitations,
how those holding agency offices are appointed
and removed. Congress also may enumerate
the powers, duties, and functions to be exercised
by agencies, as well as directly counteract,
through later legislation, certain agency actions
implementing delegated authority.”

What all this appears to say is that the Constitution has no enumerated power to establish administrative agencies, the heads of which may be required to give their opinion, in writing, to the president, regarding all laws which have been created by Congress to support the powers that are enumerated in the same Article II Section 8.

But if the Constitution does not enumerate a power to the government, then it should fall to the states, or to the people. But “…the Supreme Court has generally recognized that Congress has broad constitutional authority to establish and shape the federal bureaucracy.”

So, it seems that there is no constitutional basis for the creation of executive agencies of any kind, nor for the laws which fall under the purview of those agencies.

#58

A PDF version of everycrsreport.com can be found here:
https://www.everycrsreport.com/files/2021-05-12_R45442_e34a620d03eb5880bbfc8d4e1a1803d034487826.pdf

Let us accept for the moment, as seems reasonable, that some executive agencies are permitted; why else would they be mentioned in Article I Section 8?

It is still the case that the government, in this case in the guise of Congress, is permitted only certain laws, to support the enumerated powers in Article I Section 8, those “…foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States…”, or in any Department or Officer thereof.

This is somewhat overlapping with the X amendment. Article I says “… or in any Department or Officer thereof”, but the tenth amendment specifically states that the powers not delegated to the United States by the Constitution, shall be vested in the states, except those prohibited to the states.

This effectively eliminates any power vested in “…any Department or Officer thereof” that has not already been enumerated in the constitution.

We are left with only certain executive agencies that are properly designated by the constitution. I would suggest that the following are permitted under the powers enumerated in Article I Section 8:
State Department
Treasury Department
IRS
Defense Department
Commerce Department
Immigration and Naturalization Service
U.S. Mint
Department of weights and measures
Secret Service, counterfeiting division
Patent office
Copyright office
Defense Department

Other executive agencies that would NOT be permitted would be things like:
Department of Education
Department of Agriculture
Environmental Protection Agency
Department of Health and Human Services
Library of Congress
Social Security
Etc.

These are departments that are appear to be not constitutionally derived, and the laws and regulations promulgated under their jurisdiction might be fodder for the canon of NULLIFICATION.

#59

The “natural right” of a political entity to secede has validity in international law.

(emphasis mine)
“The idea that the Colonies had a natural right to peacefully separate from England was a core principle of the American Revolution.”
https://www.americancivilwarforum.com/the-right-of-peaceful-separation-secession-a-core-principle-of-the-american-revolution-13383.html

“But when attention is turned to relatively
recent history - since the beginning of the
Netherlands Revolution in the late sixteenth
century - it becomes apparent that legal
science and a variety of socio-political
teachings have sought out and endeavored
to consolidate reasonable legal grounds for
separation and the creation of an independent
state in resolving such political problems.
These ideas acquired their validity through the
application of the right of secession in resolving
such political problems.”

THE RIGHT OF SECESSION AS A
HUMAN RIGHT*
Annual Survey of International & Comparative Law Volume 3 | Issue 1 Article 3 https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1018&context=annlsurvey

#60

Many websites contain the following statement (emphasis mine):
“Two prominent political leaders in the Confederation,
John Jay of New York and Thomas Burke of North
Carolina believed that "the authority of the congress
rested on the prior acts of the several states, to which
the states gave their voluntary consent, and until those
obligations were fulfilled, neither nullification of the
authority of congress, exercising its due powers, nor
secession from the compact itself was consistent with
the terms of their original pledges.” ”

The source for the embedded quote is always given as “Political scientist David C. Hendrickson writes that…” This is footnoted as Hendrickson, David C., Peace Pact: The Lost World of the American Founding. (2003) ISBN 0-7006-1237-8

I have been unable to find a readily accessible copy of “Peace Pact” online.
Nor have I been able to find the original source that Hendrickson uses for this quote.
Until I am able to find the original source of this quote, I will have to assume its authenticity.

The statement was written to advance the idea that the states entered into the Articles of Confederation voluntarily, and that the Congress that wrote and accepted the Articles of Confederation was the same Congress that was now considering the a new Constitution. That is to say, both were considered to be the Congress of the United States of America, and it was the same “United States of America”. “The Articles of Confederation” is one of those “prior acts of the several states, to which the the states gave their voluntary consent…” and upon which “the authority of the congress rested…”

Because the Articles of Confederation were accepted voluntarily, the Congress considering the new Constitution had to act under the authority of the Articles. According to Article XIII of the Confederation, any alteration had to be approved unanimously:

“[T]he Articles of this Confederation shall be inviolably
observed by every State, and the Union shall be perpetual;
nor shall any alteration at any time hereafter be made in
any of them; unless such alteration be agreed to in a Congress
of the United States, and be afterwards confirmed by the
legislatures of every State.”

On the other hand, Article VII of the proposed Constitution stated that it would become effective after ratification by a mere nine states, without unanimity:

“The Ratification of the Conventions of nine States, shall
be sufficient for the Establishment of this Constitution
between the States so ratifying the Same.”

This presented a chicken-and-egg situation. Congress was at the time working under a rule of unanimity, and before Article VII of the new Constitution requiring ratification by only nine states could take effect it had to be ratified by all of the states.

In 1788 James Madison addressed this issue in Federalist No. 40.

In the final analysis, all 13 states did ratify the new constitution, so there was no conflict.
However, it explains why Article VII of the new constitution stated that (emphasis mine):
“The Ratification of the Conventions of nine States,
shall be sufficient for the Establishment of this
Constitution between the States so ratifying the Same.”

Once the new Constitution was ratified the ideas of “perpetual union”, “secession”, and “nullification” were no where to be found.