Author: "For Liberty"

By: Mike Maharrey

LANSING, Mich. (Sept. 6, 2019) – Next week, a Michigan Senate committee will hold a hearing on a proposed resolution that would put a state constitutional amendment on the ballot to elevate the privacy of their electronic communications and data to the same level as “persons, houses, papers and possession.”

Sen. Jim Runestad (R-White Lake) along with 27 cosponsors, introduced Senate Joint Resolution G (SJRG) on June 12. If approved, the resolution would allow voters to consider an amendment to Article 1, Section 11 of the Michigan state constitution that would require the government to obtain a search warrant in order to access a person’s electronic data or electronic communication. The amendment would add the following highlighted words to Article I Sec. 11 of the state constitution.

Sec. 11. The person, houses, papers, and possessions, ELECTRONIC DATA, AND ELECTRONIC COMMUNICATIONS of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things OR TO ACCESS ELECTRONIC DATA OR ELECTRONIC COMMUNICATIONS shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.

The proposed amendment would go before voters in the first general election after passage of the resolution.

“The right of individuals to be secure from unreasonable searches and seizures is fundamental and should be clearly addressed in our state’s constitution,” Runestead said in a statement.

Language in SJRG was modeled on Missouri Amendment 9, which passed in with an overwhelming 75 percent of the vote in 2014. A state constitutional amendment to protect “private and personal information” passed in New Hampshire last year.

As the ACLU pointed out in an article supporting the New Hampshire amendment, without protections explicitly enshrined in the state constitution, the right to electronic data privacy exists at the whims of state legislators.

“Without state constitutional protections, privacy is not the … default setting. Rather, it needs to be repeatedly established, protected, and defended by the state legislature each time a new surveillance technology or method is established, which is a common occurrence in our modern technological world. State legislators should not play an endless game of Whack-A-Mole against threats to their residents’ privacy. Relying exclusively on piecemeal statutes or search and seizure provisions written before the dawn of the internet is no way … to protect privacy.”

Practically speaking inclusion of electronic communications and data in the state’s constitutional prohibition on unreasonable searches and seizures would require state and local police in Michigan to obtain a judicial warrant, supported by probable cause, before accessing cell phones and other electronic devices. It would also set the foundation to help prevent law enforcement from accessing private information through third parties.

The Senate Committee on Judiciary and Public Safety will hold a hearing on SJRG on Sept. 12.

IMPACT ON FEDERAL SURVEILLANCE

While a state constitutional amendment only binds state agencies and not the federal government, the amendment would also set the foundation to help protect Michiganders from the ever-growing federal surveillance state.

Passage of the proposed amendment would set the foundation to limit state and local surveillance and minimize the amount of personal information collected and stored by state and local governments. By doing so, it would also impact federal surveillance programs that depend on state and local support.

The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE.

Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”

Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.

In practice, local data collection using ALPRs, stingrays, drones and other spy technologies create the potential for the federal government to track the movement of millions of Americans, and obtain and store information on millions of Americans, including phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.

In a nutshell, without state and local assistance, the feds have a much more difficult time gathering information. When the state limits surveillance and data collection, it means less information the feds can tap into. This represents a major blow to the surveillance state and a win for privacy.

PARALLEL CONSTRUCTION

By including access to “electronic communications and data” under the same warrant requirements – describing them, probable cause, and supported by oath or affirmation – as “person, houses, papers, and possessions,” it would make such data gathered by federal agencies such as the NSA or FBI and shared with state and local law enforcement more likely to be inadmissible in state criminal proceedings. This protection will remain in place for Michiganders even if federal courts ultimately put the seal of approval on warrantless data collection by the NSA and other federal agencies.

Reuters revealed the extent of such NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known Special Operations Divisions and the cases “rarely involve national security issues.” Almost all of the information involves regular criminal investigations, not terror-related investigations.

In other words, not only does the NSA collect and store this data, using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.

This is “the most threatening situation to our constitutional republic since the Civil War,” Binney said.

WHAT’S NEXT

SJRG was referred to the Senate Committee on Judiciary and Public Safety. The bill is scheduled for a hearing on Thursday, Sept. 12, at 10 a.m. SJRG will have to pass the committee by a majority vote before moving forward in the legislative process.

By: Mike Maharrey

The Constitution can’t enforce itself.

People often quote Lysander Spooner to make the case that constitutional limits on federal power mean nothing.

“But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”

But I find a very odd assumption buried in this line of thinking – this idea that the Constitution can or should somehow enforce itself.

Think of it this way – if a person tells you to shut up, you will almost certainly ignore them unless you know they have the ability to actually make you be quiet. Their words mean nothing unless they possess the power to back them up and put them into effect.

Constitutions work the same way. You can’t just wave the document in front of out-of-control government officials or agencies like a red cloth in front of a bull and expect them to simply stop what they’re doing. Without some enforcement mechanism, the Constitution is of little use when it comes to limiting the power of the federal government.

James Madison understood this dynamic. In Federalist #48, he described limits on power in constitutions as mere “parchment barriers.”

“Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defence is indispensably necessary for the more feeble, against the more powerful members of the government.”

In other words, governments won’t adhere to the limits on their own power just because we write them out.

Madison went on to warn about the consequences of relying on parchment barriers.

“The conclusion which I am warranted in drawing from these observations is, that a mere demarkation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”

In a letter to Thomas Jefferson regarding the proposal for a Bill of Rights, Madison pointed out that state governments were notorious for ignoring their constitutional constraints.

“Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current.”

So, does this make the Constitution completely useless?

Of course not.

Madison was suggesting that we need something to back up our words – “some more adequate defense.”  In short – the people must enforce their constitutions.

In the American system, the states were intended to serve as the defense. Alexander Hamilton made this very point in Federalist #28.

“It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.”

Madison gave us a Blueprint to do this in Federalist #46. He said state action – specifically a refusal to cooperate with officers of the union – would impede federal power even in a single state. When multiple states take action, Madison said it would “create obstructions which the federal government would hardly be willing to encounter.”

The Constitution sets strict limits of federal authority. But it possesses no power on its own. It isn’t a magic parchment. It will not enforce itself. The power of the Constitution begins and ends with us and our willingness to take action when the federal government exercises unwarranted authority. Parchment barriers easily tear. But when enforced by a determined population, they become a solid brick wall restraining government action.

Spooner was right in a sense. The Constitution was powerless to stop the federal government from turning into an all-powerful monster. But don’t blame the Constitution. It’s only ink and parchment. The blame for any constitutional failure falls squarely on our shoulders.

Fortunately, something can be done about it.

Be sure and visit our friends over at the Tenth Amendment Center and BamaCarry Inc.

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By: Mike Maharrey

The Supreme Court has long held that states do not have to actively participate in the enforcement or effectuation of federal acts or regulatory programs.

James Madison’s advice for resisting federal overreach in Federalist #46 serves as the basis for what we now know as the legal doctrine of “anti-commandeering.” Madison advised four primary tactics for individuals and states to effectively push back against federal overreach, including a “refusal to cooperate with officers of the Union.”

The following are the five landmark cases where the Court has upheld this doctrine.

In Prigg v. Pennsylvania (1842), Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it:

The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.

In New York v. United States (1992) the Court held that the regulations in the Low-Level Radioactive Waste Policy Amendment Act of 1985 were coercive and violated the sovereignty of New York, holding that “because the Act’s take title provision offers the States a ‘choice’ between the two unconstitutionally coercive alternatives–either accepting ownership of waste or regulating according to Congress’ instructions–the provision lies outside Congress’ enumerated powers and is inconsistent with the Tenth Amendment.”

Sandra Day O’Connor wrote for the majority in the 6-3 decision:

As an initial matter, Congress may not simply “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”

She later expounded on this point.

While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.

Printz v. United States (1997) serves as the lynchpin for the anti-commandeering doctrine. At issue was a provision in the Brady Gun Bill that required county law enforcement officers to administer part of the background check program. Sheriffs Jay Printz and Richard Mack sued, arguing these provisions unconstitutionally forced them to administer a federal program. Justice Antonin Scalia agreed, writing in the majority opinion “it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme.”

Citing the New York case, the court majority declared this provision of the Brady Gun Bill unconstitutional, expanding the reach of the anti-commandeering doctrine.

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program.

Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

In Independent Business v. Sebelius (2012), the Court held that the federal government cannot compel states to expand Medicaid by threatening to withhold funding for Medicaid programs already in place. Justice Robert Kennedy argued that allowing Congress to essentially punish states that refused to go along violates constitutional separation of powers.

The legitimacy of Congress’s exercise of the spending power “thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ” Pennhurst, supra, at 17. Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system. That system “rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’ ” Bond, 564 U. S., at     (slip op., at 8) (quoting Alden v. Maine, 527 U. S. 706, 758 (1999) ). For this reason, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York, supra, at 162. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer.

In Murphy v. NCAA (2018), the Court held that Congress can’t take any action that “dictates what a state legislature may and may not do” even when the state action conflicts with federal law. Samuel Alito wrote, “a more direct affront to state sovereignty is not easy to imagine.” He continued:

The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States … Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.

Taken together, these five cases firmly establish a legal doctrine holding that the federal government has no authority to force states to participate in implementing or enforcing its acts.

Madison’s advice in Federalist #46, supported by the anti-commandeering doctrine, provides a powerful tool that states can use against federal acts and regulatory programs.

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Mike Maharrey

Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center.He proudly resides in the original home of the Principles of ’98 – Kentucky.See his blog archive here and his article archive here.He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE

By John W. Whitehead

“These are the times that try men’s souls.” ― Thomas Paine, The American Crisis

Take heed, America.

Our losses are mounting with every passing day.

What began with the post-9/11 passage of the USA Patriot Act  has snowballed into the eradication of every vital safeguard against government overreach, corruption and abuse.

The citizenry’s unquestioning acquiescence to anything the government wants to do in exchange for the phantom promise of safety and security has resulted in a society where the nation is being locked down into a militarized, mechanized, hypersensitive, legalistic, self-righteous, goose-stepping antithesis of every principle upon which this nation was founded.

Set against a backdrop of government surveillance, militarized police, SWAT team raids, asset forfeiture, eminent domain, overcriminalization, armed surveillance drones, whole body scanners, stop and frisk searches, police violence and the like—all of which have been sanctioned by Congress, the White House and the courts—our constitutional freedoms have been steadily chipped away at, undermined, eroded, whittled down, and generally discarded.

The rights embodied in the Constitution, if not already eviscerated, are on life support.

Free speech, the right to protest, the right to challenge government wrongdoing, due process, a presumption of innocence, the right to self-defense, accountability and transparency in government, privacy, press, sovereignty, assembly, bodily integrity, representative government: all of these and more have become casualties in the government’s war on the American people, a war that has grown more pronounced since 9/11.

Indeed, since the towers fell on 9/11, the U.S. government has posed a greater threat to our freedoms than any terrorist, extremist or foreign entity ever could.

While nearly 3,000 people died in the 9/11 attacks, the U.S. government and its agents have easily killed at least ten times that number of civilians in the U.S. and abroad since 9/11 through its police shootings, SWAT team raids, drone strikes and profit-driven efforts to police the globe, sell weapons to foreign nations (which too often fall into the hands of terrorists), and foment civil unrest in order to keep the military industrial complex gainfully employed.

The American people have been treated like enemy combatants, to be spied on, tracked, scanned, frisked, searched, subjected to all manner of intrusions, intimidated, invaded, raided, manhandled, censored, silenced, shot at, locked up, denied due process, and killed.

In allowing ourselves to be distracted by terror drills, foreign wars, color-coded warnings, underwear bombers and other carefully constructed exercises in propaganda, sleight of hand, and obfuscation, we failed to recognize that the U.S. government—the government that was supposed to be a “government of the people, by the people, for the people”—has become the enemy of the people.

This is a government that has grown so corrupt, greedy, power-hungry and tyrannical over the course of the past 240-plus years that our constitutional republic has since given way to idiocracy, and representative government has given way to a kleptocracy (a government ruled by thieves) and a kakistocracy (a government run by unprincipled career politicians, corporations and thieves that panders to the worst vices in our nature and has little regard for the rights of American citizens).

This is a government that, in conjunction with its corporate partners, views the citizenry as consumers and bits of data to be bought, sold and traded

This is a government that spies on and treats its people as if they have no right to privacy, especially in their own homes.

This is a government that is laying the groundwork to weaponize the public’s biomedical data as a convenient means by which to penalize certain “unacceptable” social behaviors. Incredibly, as part of a proposal being considered by the Trump Administration, a new government agency HARPA (a healthcare counterpart to the Pentagon’s research and development arm DARPA) will take the lead in identifying and targeting “signs” of mental illness or violent inclinations among the populace by using artificial intelligence to collect data from Apple Watches, Fitbits, Amazon Echo and Google Home.

This is a government that routinely engages in taxation without representation, whose elected officials lobby for our votes only to ignore us once elected.

This is a government comprised of petty bureaucrats, vigilantes masquerading as cops, and faceless technicians.

This is a government that railroads taxpayers into financing government programs whose only purpose is to increase the power and wealth of the corporate elite.

This is a government—a warring empire—that forces its taxpayers to pay for wars abroad that serve no other purpose except to expand the reach of the military industrial complex.

This is a government that subjects its people to scans, searches, pat downs and other indignities by the TSA and VIPR raids on so-called “soft” targets like shopping malls and bus depots by black-clad, Darth Vader look-alikes.

This is a government that uses fusion centers, which represent the combined surveillance efforts of federal, state and local law enforcement, to track the citizenry’s movements, record their conversations, and catalogue their transactions.

This is a government whose wall-to-wall surveillance has given rise to a suspect society in which the burden of proof has been reversed such that Americans are now assumed guilty until or unless they can prove their innocence.

This is a government that treats its people like second-class citizens who have no rights, and is working overtime to stigmatize and dehumanize any and all who do not fit with the government’s plans for this country.

This is a government that uses free speech zones, roving bubble zones and trespass laws to silence, censor and marginalize Americans and restrict their First Amendment right to speak truth to power. The kinds of speech the government considers dangerous enough to red flag and subject to censorship, surveillance, investigation, prosecution and outright elimination include: hate speech, bullying speech, intolerant speech, conspiratorial speech, treasonous speech, threatening speech, incendiary speech, inflammatory speech, radical speech, anti-government speech, right-wing speech, left-wing speech, extremist speech, politically incorrect speech, etc.

This is a government that adopts laws that criminalize Americans for otherwise lawful activities such as holding religious studies at home, growing vegetables in their yard, and collecting rainwater.

This is a government that persists in renewing the National Defense Authorization Act (NDAA), which allows the president and the military to arrest and detain American citizens indefinitely.

This is a government that saddled us with the Patriot Act, which opened the door to all manner of government abuses and intrusions on our privacy.

This is a government that, in direct opposition to the dire warnings of those who founded our country, has allowed the Department of Homeland Security (DHS) to establish a standing army by way of programs that transfer surplus military hardware to local and state police.

This is a government that has militarized American’s domestic police, equipping them with military weapons such as “tens of thousands of machine guns; nearly 200,000 ammunition magazines; thousands of pieces of camouflage and night-vision equipment; and hundreds of silencers, armored cars and aircraft,” in addition to armored vehicles, sound cannons and the like.

This is a government that has provided cover to police when they shoot and kill unarmed individuals just for standing a certain way, or moving a certain way, or holding something—anything—that police could misinterpret to be a gun, or igniting some trigger-centric fear in a police officer’s mind that has nothing to do with an actual threat to their safety.

This is a government that has allowed private corporations to get rich at taxpayer expense by locking people up for life for non-violent crimes. There are thousands of people in America serving life sentences for non-violent crimes, including theft of a jacket, siphoning gasoline from a truck, stealing tools, and attempting to cash a stolen check. It costs roughly $29,000 a year per inmate just to keep these nonviolent offenders in prison. Meanwhile, American prisons have become the source of cheap labor for Corporate America.

This is a government that has created a Constitution-free zone within 100 miles inland of the border around the United States, paving the way for Border Patrol agents to search people’s homes, intimately probe their bodies, and rifle through their belongings, all without a warrant. Nearly 66% of Americans (2/3 of the U.S. population, 197.4 million people) now live within that 100-mile-deep, Constitution-free zone.

This is a government that treats public school students as if they were prison inmates, enforcing zero tolerance policies that criminalize childish behavior, and indoctrinating them with teaching that emphasizes rote memorization and test-taking over learning, synthesizing and critical thinking.

This is a government that is operating in the negative on every front: it’s spending far more than what it makes (and takes from the American taxpayers) and it is borrowing heavily (from foreign governments and Social Security) to keep the government operating and keep funding its endless wars abroad. Meanwhile, the nation’s sorely neglected infrastructure—railroads, water pipelines, ports, dams, bridges, airports and roads—is rapidly deteriorating.

This is a government that has empowered police departments to make a profit at the expense of those they have sworn to protect through the use of asset forfeiture laws, speed traps, and red light cameras.

This is a government whose gun violence—inflicted on unarmed individuals by battlefield-trained SWAT teams, militarized police, and bureaucratic government agents trained to shoot first and ask questions later—poses a greater threat to the safety and security of the nation than any mass shooter. There are now reportedly more bureaucratic (non-military) government agents armed with high-tech, deadly weapons than U.S. Marines.

This is a government that has allowed the presidency to become a dictatorship operating above and beyond the law, regardless of which party is in power.

This is a government that treats dissidents, whistleblowers and freedom fighters as enemies of the state.

This is a government that has in recent decades unleashed untold horrors upon the world—including its own citizenry—in the name of global conquest, the acquisition of greater wealth, scientific experimentation, and technological advances, all packaged in the guise of the greater good.

This is a government that allows its agents to break laws with immunity while average Americans get the book thrown at them.

This is a government that speaks in a language of force. What is this language of force? Militarized police. Riot squads. Camouflage gear. Black uniforms. Armored vehicles. Mass arrests. Pepper spray. Tear gas. Batons. Strip searches. Surveillance cameras. Kevlar vests. Drones. Lethal weapons. Less-than-lethal weapons unleashed with deadly force. Rubber bullets. Water cannons. Stun grenades. Arrests of journalists. Crowd control tactics. Intimidation tactics. Brutality. Contempt of cop charges.

This is a government that justifies all manner of government tyranny and power grabs in the so-called name of national security, national crises and national emergencies.

This is a government that exports violence worldwide, with one of this country’s most profitable exports being weapons. Indeed, the United States, the world’s largest exporter of arms, has been selling violence to the world in order to prop up the military industrial complex and maintain its endless wars abroad.

This is a government that is consumed with squeezing every last penny out of the population and seemingly unconcerned if essential freedoms are trampled in the process.

This is a government that routinely undermines the Constitution and rides roughshod over the rights of the citizenry, eviscerating individual freedoms so that its own powers can be expanded.

This is a government that believes it has the authority to search, seize, strip, scan, spy on, probe, pat down, taser, and arrest any individual at any time and for the slightest provocation, the Constitution be damned.

In other words, this is not a government that believes in, let alone upholds, freedom.

So where does that leave us?

As always, the first step begins with “we the people.”

As I make clear in my book Battlefield America: The War on the American People, our power as a citizenry comes from our ability to agree and stand united on certain freedom principles that should be non-negotiable.

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ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People  is available at www.amazon.com. Whitehead can be contacted at johnw@rutherford.org.

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John W. Whitehead’s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact staff@rutherford.org to obtain reprint permission.

By: Rob Natelson

Probably no part of the Constitution has been so misunderstood as the Necessary and Proper Clause, which is located at Article I, Section 8, Clause 18. 

The Necessary and Proper Clause has been called both an “elastic clause” and a “sweeping clause,” and many have claimed it grants vast power to Congress.  For example, a recent Supreme Court case, United States v. Comstock, stated that the “Necessary and Proper Clause grants Congress broad authority to enact federal legislation.”

In fact, most federal regulations today are justified by the Necessary and Proper Clause.  They are said to be within Congress’s Interstate Commerce Power – but within not the core Commerce Clause (“The Congress shall have Power . . . To regulate Commerce . . . among the several States”).  Rather, they are said to be supported by the accompanying authority to “make all Laws which shall be necessary and proper for carrying into Execution” the power to regulate commerce.

Now, here’s the irony of the situation: Far from granting “broad authority” to Congress, the truth is that the Necessary and Proper Clause grants no power at all.  It is placed at the end of Article I, Section 8 as an explanation -that is, a “recital.”  A recital is a passage in a legal document that has no substantive legal effect, but serves to inform the reader of assumptions or facts behind the document.  Another example of a recital in the Constitution is the Preamble.

In recent years, several constitutional scholars have investigated the true meaning of the Clause, and have worked to correct the record.  The process began with an article written by Professor Gary L. Lawson and Patricia B. Granger: The  Proper  Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267 (1994).  It focused on the meaning of “proper.”  A decade later, I delved into the historical record.  I found that wording of this kind was extremely common in eighteenth-century documents granting power from one person to another.  I also found the courts had issued cases interpreting this language, and that the Founders had adopted the courts’ interpretation. See articles hereand here.

Finally, Professors Lawson and I teamed up with two other noted scholars, Geoff Miller, and Guy Seidman, and wrote a book on the subject.  (We all have differing political views, by the way.)  The book is called The Origins of the Necessary and Proper Clause, and it was published last year by Cambridge University Press.

Here’s what we found:

*    The Clause is a mere recital.  It informs the reader how to interpret congressional authority.  It does not grant any power.

*    The term “necessary” tells the reader that congressional authority is interpreted according to the intent behind the document, rather than very strictly (as the Articles of Confederation required).

*    The Clause does this by telling the reader that the legal “doctrine of incidental powers” applies to the Constitution. This means that Congress can regulate certain activities outside the strict reading of its powers, but ONLY IF this ancillary regulation is (1) subordinate to an express power, and (2) a customary or necessary way of carrying out the express power.  For example, in regulating commerce, Congress can require accurate labels on goods to be shipped in interstate commerce.  But Congress cannot regulate the entire manufacturing process.

*    The word “proper” means that a law must comply with Congress’s fiduciary (public trust) responsibilities.  A law is not “proper” -and is therefore unconstitutional – if it invidiously discriminates among people, violates individual rights, is utterly irrational, or exceeds congressional authority.

*    Contrary to prevailing legal mythology, Chief Justice Marshall’s famous case of McCulloch v. Maryland (1819) did not stretch the Clause, but applied it properly and with due regard for its limitations.

Recently, Dave Kopel, the Independence Institute Research Director, filed an amicus curiae brief in the most important anti-Obamacare lawsuit.  He did so on behalf of Professors Lawson, Seidman, and me.  The goal?  To correct the record and inform the courts what the Necessary and Proper Clause REALLY means.

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Path to Liberty, Fast Friday Edition

A lot of people refer to their rights by amendment number. Doing so is not only a constitutional error, it’s dangerous. Thomas Paine basically said getting this wrong or neglecting natural rights is what leads to “corruption in government.”

By: Mike Maharrey

The surveillance state constantly expands. That thing that seems like no big deal today can suddenly become a big deal as technology evolves.

Take the proliferation of surveillance cameras. We’ve come to accept electronic eyes recording our every move like a normal part of life. Most of the time we hardly even notice the cameras. At some level, we may realize we’re being recorded, but we figure nobody will ever actually watch the footage. Even with cameras everywhere, we feel relatively safe in our anonymity.

But how would you feel if you knew somebody was monitoring every camera pointed in your direction 24/7. Scrutinizing your every move. Judging your every action. Noting whom you associate with and scouring your facial expressions for signs of suspicious behavior?

We’re rapidly getting to that place.

Of course, we’re not talking about human “somebodies.” We’re talking about artificial intelligence – “AI agents” capable of scouring video footage every second of every day and flagging “suspicious” behavior.

The ACLU recently released a report on the rapidly growing use of “video analytics” as a surveillance tool. As the ACLU puts it, AI has the potential to turn every-day surveillance cameras into a “nightmarish army of unblinking watchers.”

What we found is that the capabilities that computer scientists are pursuing, if applied to surveillance and marketing, would create a world of frighteningly perceptive and insightful computer watchers monitoring our lives. Cameras that collect and store video just in case it is needed are being transformed into devices that can actively watch us, often in real-time. It is as if a great surveillance machine has been growing up around us, but largely dumb and inert — and is now, in a meaningful sense, “waking up.”

According to the report, police and government intelligence agencies have used AI to develop “anomaly detection” algorithms that can pick up on “unusual,” “abnormal,” “deviant,” or “atypical” and flag such individuals for further scrutiny. As the ACLU reports, this could have far-reaching ramifications and brings with it tremendous potential for abuse.

Think about some of the implications of such techniques, especially when combined with other technologies like face recognition. For example, it’s not hard to imagine some future corrupt mayor saying to an aide, “Here’s a list of enemies of my administration. Have the cameras send us all instances of these people kissing another person, and the IDs of who they’re kissing.” Government and companies could use AI agents to track who is “suspicious” based on such things as clothing, posture, unusual characteristics or behavior, and emotions. People who stand out in some way and attract the attention of such ever-vigilant cameras could find themselves hassled, interrogated, expelled from stores, or worse.

AI also raises concerns about accuracy. We’ve already heard about problems with facial recognition systems misidentifying people – particularly minorities. As the ACLU puts it, “Many or most of these [AI] technologies will be somewhere between unreliable and utterly bogus.”

The interconnectedness of the U.S. surveillance state magnifies danger and the threat to your privacy these systems pose. If a local camera happens to flag you, you will almost certainly end up in national databases accessible by police and government officials across the U.S. Federal, state and local law enforcement agencies can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE.

George Orwell’s Big Brother would drool over the all-encompassing surveillance system quietly under construction in the United States. Cameras equipped with facial recognition technology. monitored by “AI agents,” and linked to federal, state and local databases can track your every move just by pointing a camera at your face. It effectively turns each of us into a suspect standing in a perpetual lineup.

Police operate these camera systems with little oversight and oftentimes in complete secrecy.

With their rapid proliferation, the potential for abuse and the threat to basic privacy rights posed by camera surveillance, state and local governments need to make oversight and placing limits on law enforcement use of facial recognition a top priority. At the least, law enforcement agencies should be required to get local government approval in a public meeting before obtaining facial recognition technology. The TAC’s Local Ordinance to Limit Surveillance Technology covers this.

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Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center.He proudly resides in the original home of the Principles of ’98 – Kentucky.See his blog archive here and his article archive here.He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE

By: TJ Martinell

When the Constitution was signed on September 17, 1787, federalists claimed the new government would only have limited powers expressly delegated to it. This wasn’t enough for anti-federalists like George Mason, who wanted explicit guarantees to certain rights in order to prevent any potential encroachment by the federal government.

One of them was the right to keep and bear arms. Mason wrote:

“A well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State”

The Founding Fathers, having just broken away from Great Britain, understood the new federal government they were ratifying might one day become just as tyrannical. If it had the authority to control citizen access to firearms, then it could disarm them, just as the British attempted to do. This would make any attempts to restore liberties futile.

The Second Amendment was specifically included in the Bill of Rights to prevent this.

Two centuries later, we are in an ideological struggle with gun control advocates attempting to alter the meaning of the Second Amendment in order to allow for federal restrictions on our right to bear arms. Not surprisingly, they completely ignore what the ratifiers of the Constitution and the Second Amendment had to say, because all pertinent historical documents contradict them.

For example, when the Founders wrote of a “well regulated” militia, they meant militias needed to be well regulated through training and drilling in order to be effective in battle. This could only happen if citizens had unrestricted access to firearms.

James Madison, the father of the Constitution, said in 1789 that “A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.”

An example of a well regulated militia under Madison’s definition were the Minutemen at Concord and Lexington, who had drilled on fields in preparation for war.

As to the meaning of the word “militia,” it has nothing to do with the National Guard. There is already a clause in the Constitution that specifically authorizes arming them.

So what is a militia as defined by the Founders? Mason said they were “the whole people, except for a few public officials.”

In fact, there was a universal acceptance among both federalists and anti-federalists as to the importance of the right to bear arms.

Alexander Hamilton wrote in Federalist 28 that “if the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense,” a right which he declared to be “paramount.”

And then there is clause “shall not be infringed.” There is no exception to this contained anywhere in the amendment.

Zacharia Johnson, a delegate to the Virginia Ratifying Convention, summed up the meaning of the Second Amendment when he declared that “The people are not to be disarmed of their weapons. They are left in full possession of them.”

Full possession. Not some. Not most. Full possession of their weapons. The feds were to keep their hands off entirely.

The Founders made it very clear what the Second Amendment means. But if we do not fight against any and all attempts by the feds to infringe upon our right to keep and bear arms, then it loses all relevant meaning.

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TJ Martinell is an author, writer, and award-winning reporter from Washington state. His dystopian novel The Stringers depicting a neo-Prohibition Era in the city of Seattle is available on Amazon.

Visit his personal site at www.tjmartinell.com. Join his Facebook page here. Listen to his weekly podcast on Sound Cloud.

By: Dave Benner

Today in history, on September 3, 1783, the Treaty of Paris was signed, formally ending the American War for Independence the next year.

In 1781, a major victory was scored over the British at Yorktown by Continental Army commander George Washington, with considerable French support. British General Charles Cornwallis’ entire army was captured, and Britain was forced to suspend combat operations in North America. In the following two years, however, the war officially continued as Britain refused to recognize peace. Meanwhile, The American states maintained the official position that complete independence was the minimum demand for making peace with Britain.

Back in London, the political stock of those who had opposed the war against the American states from the beginning, such as Edmund Burke and Charles James Fox, was rapidly rising. With the Cornwallis’ defeat in Yorktown, King George III faced scrutiny from Parliament, which eventually threatened to withhold funding to wage the king’s war.

In February of 1782, British Parliament finally voted to halt war operations, though about 30,000 soldiers remained in North America. Politically, though, the severance of the United States from Britain was far from a done deal.

Fox, a leader of the British Whigs, urged the ministry to grant immediate independence prior to any other concessions or arrangements. However, with the passing of Lord Rockingham and the selection of The Earl of Shelburne to replace him, Fox’s radical views were prevented from influencing the peace negotiations.

At the same time, French diplomat Charles Gravier, the Comte de Vergennes, opposed American independence as a precondition to the settlement of other terms. Vergennes believed that American concessions to France were due, including the recognition of French territory east of the Mississippi River. At this point, it was expected that any peace agreement would be a three-way deal between Britain, France, and the United States.

While Vergennes was on cordial terms with Benjamin Franklin, the famed American diplomat in London, he remained at odds with American commissioners John Jay and John Adams – both of whom distrusted him. When Franklin and Jay agreed to abandon American demands for immediate recognition of independence prior to any other concessions, it infuriated Adams so much so that he mulled resigning from the peace commission.

Even so, after a series of unilateral deliberations between the American and British diplomats, a series of stipulations were agreed to. The 1783 Treaty of Paris, as it was to be known, contained the following provisions:

First, the independence of the American states was unambiguously recognized. Rather than the acknowledgment of a singular American union, the Treaty of Paris made clear that each state was to be considered a sovereign country with independent political authority.

As Article 1 of the treaty stated, all of the American polities were to be considered “free sovereign and Independent States,” and that Britain would relinquish “all claims to the Government, Propriety, and Territorial Rights of the same and every Part thereof.”

Second, all wartime hostilities were to cease and British army and naval forces, along with remaining British forts, were to be evacuated with “all convenient speed.” Third, all land north of the Ohio River and south of Canada was to be ceded to the United States. Fourth, rights to fisheries off Newfoundland and Nova Scotia were guaranteed to all Americans.

Fifth, the rights and property of Tories in the United States were to be recognized, and the states were ordered to repay the Tories for estates that had been confiscated during the course of the war. Future confiscation of Tory property was expressly prohibited, and all prisoners of war were to be released. Sixth, debts accrued between citizens of both Britain and any American state were to remain undisturbed and in effect. Seventh, navigation of the Mississippi River would be guaranteed to each American state and to Britain. However, since Spain controlled access to the river, this clause was virtually meaningless in practice.

The Americans secured peace through the Treaty of Paris with Britain alone, mostly at the urging of Jay. This maneuver effectively pushed Vergennes out of deliberations, and the French diplomat consequently felt deeply betrayed by the Americans. Believing the terms toward the United States to be too generous, he commented that “the English buy peace rather than make it.”

While the move obviously disturbed French-American relations to some extent, some consider Jay’s shrewd behavior as one of the greatest American diplomatic achievements. This was because it granted the American states broad territorial control, expansive navigation rights, and unmistakable political autonomy. The Treaty of Paris also dismayed Spain, which thought the agreement would threaten its North American holdings, such as Spanish Florida.

The treaty also represented a significant British betrayal of their Indian allies in North America, who were to suffer most by being left alone in United States territory without military support from a European power.

Under the Articles of Confederation, treaties required the assent of a majority of states in Congress. This benchmark was finally realized in January of 1784, and the British crown ratified that April.

Confirming that the sovereignty of the states pre-dated the general government, Great Britain signed an agreement with the states separately. This is iterated in Article I of the Treaty:

“His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.”

Revealing the primacy of the states, the treaty held the arrangement to be one between Britain and each of the states individually. This conception was also illustrated under the Articles of Confederation, of which Article II described as “a firm league of friendship” wherein the states retained their “sovereignty, freedom, and independence,” and every “power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

Undoubtedly, the 1783 Treaty of Paris left an unparalleled impression upon the world, guaranteeing the establishment of the United States as world powers. Even though the agreement acknowledged peace, relations between the United States and Britain remained strained, especially due to the practice of impressment and the lack of trade relations.

Tags: American Revolution, state Sovereignty, Today in History, Treaty of Paris

Dave Benner [website] speaks and writes on topics related to the United States Constitution, founding principles, and the early republic. Dave is also the author of Compact of the Republic: The League of States and the Constitution and The 14^th Amendment and the Incorporation Doctrine. See his blog archive here, his article archive here, and his patreon page here.

By: Mike Maharrey

There is a push on for the creation of another unconstitutional federal agency that would create systems to identify “early signs of changes in people with mental illness that could lead to violent behavior.”

Coupled with “red flag” laws, this sounds like the beginning of a dystopian nightmare.

According to the Washington Post, the proposal is part of a larger initiative known as the Health Advanced Research Projects Agency (HARPA). The agency would operate under the Health and Human Services Department. According to the HARPA website, the agency would be modeled after the Defense Advanced Research Projects Agency (DARPA) that operates as a research arm for the Pentagon.

HARPA would work with private companies, other federal agencies, and academia, to coordinate and promote health-related research. According to the HARPA website, the federal agency would “develop biomedical capabilities – detection tools, treatments, medical devices, cures, etc. – for the millions of Americans who are not benefitting from the current system.”

In the wake of the recent highly publicized shootings and calls for the federal government to “do something” to prevent gun violence, supporters of HARPA have proposed adding a “SAFE HOME” project to HARPA. SAFE HOME stands for “Stopping Aberrant Fatal Events by Helping Overcome Mental Extremes.”

You have give the people pushing HARPA credit for their ability to seize on tragedies in order to garner political support for their proposal. The HARPA plan apparently hadn’t really gained much traction since it was initially proposed in 2017. By focusing on gun violence, the supporters of HARPA may have found the political lever they needed to push their plan forward and get the agency created.

The SAFE HOME plan sounds innocent enough, but it would create the foundation for further expansion of the U.S. surveillance state and accelerate the erosion of privacy rights.

According to the Post,  the agency would work to “develop a ‘sensor suite’ using advanced artificial intelligence to try to identify changes in mental status that could make an individual more prone to violent behavior.” The document outlining the plan lists a number of technologies that the agency could use to collect data, including Apple Watches, Fitbits, Amazon Echo and Google Home, along with  “powerful tools” collected by health-care providers such as MRIs, tractography and image analysis.

The Post article emphasizes that the project would not collect an individual’s information without their permission. But since users generally agree to allow companies like Google and Apple to share their private information when they accept terms and conditions, it seems likely the federal agency would have access to reams of private data whether you wanted them to or not.

Despite assurances that “the government is simply trying to identify risk factors when it comes to mental health that could indicate violent behavior,” the HARPA proposal should raise huge red flags. (pun intended)

One has to ask the question: what will the government do once it identifies these “risk factors?” It won’t simply publish a paper. It will use the information as a basis for action. It seems almost certain the federal government would use the risk factors developed by HARPA as criteria to justify gun confiscation under proposed “red flag” laws.

As Michael Boldin has said, from the income tax to the “PATRIOT” Act, proposals for new federal programs and powers always start small. Then they eventually end up used against everyone. John Dickinson, the “Penman of the American Revolution,” warned us to “Oppose a disease at its beginning.”

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Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center.He proudly resides in the original home of the Principles of ’98 – Kentucky.See his blog archive here and his article archive here.He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE