Tracy Tarum critiques Danial Horwitz's defense of federal supremacy over States rights

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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