Posted by Dave Lyons on 05/20/10

SECESSION THE EASY AND PRACTICAL WAY

How in the world can the Arizona law recently signed into State law be the toughest in the nation? It mirrors the federal law that the federal government ignores.

I put the recent Arizona move in this area as a State move to interpret the federal law. Many would say "WHAT!? A State can't interpret a federal law, that's up to the SCOTUS!" It's odd that many would view this as inflexible process. The idea is only accepted because society has been programmed to think that way. The Constitution is a State agreement and one given assent by the populations of the State. It is the State that has actual authority to interpret the State agreement, not a branch of the government itself. The Constitution created the federal government creating a mandate for it to abide by the provisions according to the "Assent" of the people. It's called "Performance".

"OH wait" they say, "that isn't the way it is done, so you are wrong!" Well no, I just don't swallow the ideas handed down by designing progressives.

Agreements are like contracts, and in the case of the States, it is on a Treaty basis. The contracts are on written documents, and history shows that it was necessary to obtain public assent to enter into those agreements/contracts/treaties. In contract law, the federal government (being a creature created by the agreements) is subject to the States interpretations, not one of the branches of the federal government itself. It's a normal process of contract law.

Contracts, formal agreements, or treaties are only enforceable while the parties abide by the interpretation (not breached) reached by the public when it gave it's assent unless altered by the people themselves. Ah, but the federal government says that the agreements of Statehood are no longer enforceable. Think about what that means. If the agreement is no longer enforceable, then the association is no longer enforceable but by force.

Based upon the above, it seems to me any State can make law baning the enforcement of federal law that conflicts with the association of Union. One of those things the people accepted was the principles of the Declaration of Independence. How can the federal government, (the party created in the agreements) override the assent given by the people? That happens only with despots. The process applies in a range from the small to the final step.

Elections are a form of assent. The chosen is sworn to abide by the agreements of Union. But what if the chosen refuses to abide by his oath exercising misconstruction or abusing power? Under contract law, assent can be withdrawn and a maverick politician or executive can be removed . That would be the first and smallest step in secession. Arizona's passage is only a first or gentle step in the process. The greatest step taken in secession would be when the people withdraw its assent given to the State concerning Union membership and demand that it file papers of withdrawal. But there are many potential steps before arriving there.

That, in my opinion, is the basis and heart of secession. But then, I must think a little differently than most people. Maybe. Perhaps I missed a few required sessions of mind grooming. But, I think it will be a cold day if things ever operate that way.

Dave

Notes:

Consent:

"All contracts are to be construed according to the meaning of the parties at the time of making them... There is no difference in the Constitution of government." John DeWitt, Essay #3, November 5, 1787, Anti-Federalist Papers and the Constitutional Convention Debates.

"The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE." Hamilton, Federalist # 22.

"As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the power of government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others." Madison, Federalist #49.

Elements of Contracts

Mutual Assent (Consent):

http://en.wikipedia.org/wiki/Meeting_of_the_minds

Meeting of the minds (also referred to as mutual agreement, mutual assent or consensus ad idem) is a phrase in contract law used to describe the intentions of the parties forming the contract. In particular it refers to the situation where there is a common understanding in the formation of the contract. This condition or element is often considered a necessary requirement to the formation of a contract.

 Destruction of Mutual Assent:

http://en.wikipedia.org/wiki/Meeting_of_the_minds#Destruction_of_mutual_assent

Mutual assent or meeting of the minds is destroyed by such actions as fraud, undue influence, duress (see per minas), mutual mistake, or misrepresentationhttp://en.wikipedia.org/wiki/Meeting_of_the_minds#Destruction_o
f_mutual_assent.

"No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principle; that the servant is above his master; that the representatives of the people are superior to the themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid." Hamilton, Federalist # 78

"If it be said that the legislative body are themselves the constitutional judges of their own powers and that the construction they put upon them is conclusive upon the other departments it may be answered that this cannot be the natural presumption where it is not to be collected from any particular provisions of the Constitution." Hamilton, Federalist # 78

"A Nation, without a NATIONAL GOVERNMENT, is, in my view, an awful spectacle. The establishment of a Constitution, in time of profound peace, by the voluntary consent of the whole people, is a PRODOGY, to the completion of which I look forward with trembling anxiety." Hamilton, Federalist #85

http://www.expertlaw.com/library/business/contract_law.html#1

Typically, in order to be enforceable, a contract must involve the following elements:

     A "Meeting of the Minds (Mutual Consent)

     Offer and Acceptance

     Mutual Consideration (The mutual exchange of something of value)

     Performance or Delivery

     Good Faith

     No Violation of Public Policy

Posted by Dave Lyons on 04/01/10

OPEN LETTER TO STATE GOVERNOR C

cc OPEN LETTER TO STATE ATTORNEY GENERAL

HEATH CARE DEBATE IN THE STATES

The health care debate should be taken up in the States. My conclusions and opinion is made based upon adopted facts as history reveals them.

John Stuart Mill: "The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant." ("On Liberty" 1859 )

The federal government is a creature created by the Constitution. The Constitution is like an agreement or contract established to create an agent. That means it is a creature created by the States within the form of certain rules stated in the formal document . The created entity of a contract operates under and within the rules set out in the contract. That leads me back to the idea that the Constitution is the plan of rules applicable to the operation of the agent. And, it makes the federal government an agent of the States but not a ruler of the States.

George Washington proclaimed, "The Constitution, which at any time exists until changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all."

Oddly, we find the SCOTUS typically refusing 'standing' to a citizen or groups of citizens complaining about government interference. Well, my theory is that the SCOTUS usually takes an unspoken position that it does not represent the people, but for the States with only the people's assent. But it ignores the states. The result of absent states bring about government uncontrolled.

Samuel Adams: "That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens ..... " (Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Peirce & Hale, eds., Boston, 1850.)

So, the Constitution, being an agreement between the States, should be monitored by the States. When the agent (federal government) goes beyond the planed agreements it impacts a State or a collection of them, and worse, the people. Isn't this the proper place (in the States) to guard the provisions of the planed agreements entered into for the sake of joining the Union?

 "A few years ago we fought for liberty. We framed a general government on free principles. We placed the state legislatures, in whom the people have a full and fair representation, between Congress and the people." Melancton Smith (June 23, 1788)

 The States have a rightful and legal duty to correct the error of its agent, the federal government. But, over the years the States have become absent and neglectful in their obligations concerning Citizens expectations.

George Washington proclaimed, "The Constitution, which at any time exists until changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all."

In our society, it was necessary for the governments to obtain permission from we the people. The people understood that government could do only such things as they rightly approved unless properly amended. They also expected that the States would be a guardian of Citizens rights from federal intrusion.

"A people, entering into society, surrender such a part of their natural rights, as shall be necessary for the existence of that society. They are precious in themselves, that they would never be parted with, did not the preservation of the remainder require it." John DeWitt, October 27, 1787, Boston American Herald.

When the States absent themselves neglecting their legal duty, it is the right of the Citizens to rise up to bring attention to the errors of government. You already know how public tensions increase following any route of this sort. The agreements entered into for Constitution and Union, just as with any contract or agreement, become subject to the rules of breach. It's the normal course of the laws of agreements. Instead, the States could act as originally planned.

Dave Lyons (signed)

Dave Lyons

Posted by Dave Lyons on 03/31/10

Open Letter to the Governor of Washington

cc to the Attorney General of the State of Washington

"...He shall take care that the laws be faithfully executed..." U.S. Constitution, Article II, Section 3.

In just these few words, the founders told us what the president's day job is. It's his legal duty.

LEGAL DUTY - "An obligation arising from contract of parties or the operation of the law. That which the law requires to be done or forborne to a determinate person or the public at large, correlative to a bested and coextensive right in such person or the public, and the breach of which constitutes negligence. Also, an obligation recognized by law which requires an actor to conform to a certain standard of conduct for the protection of others against unreasonable risk." Black's Law

Black's Law Dictionary gives us a hint at the seriousness of the president's day job. It's negligence if he does other than faithfully execute or insure that government departments do not fail to execute properly, the law.

But what does all this mean? To know it's best to define the words. Then we will know.

Care: Watchful attention; concern; custody; diligence; discretion; caution; opposite of negligence or carelessness; prudence; regard; preservation; security; support; vigilance. Black's Law

Faithfully: Conscientious diligence or faithfulness in meeting obligations, or just regard of adherence to duty, or due observance of undertaking of contract. As used in bonds of public and private officer, this term imports not only honesty, but also a punctilious discharge of all the duties of the office, requiring competence, diligence, and attention, without any malfeasance or nonfeasance, aside from mere mistakes. Black's Law

EXECUTE - To complete; to make; to sign; to perform; to do; to follow out; to carry out according to its terms; to fulfill the command or purpose of. To perform all necessary formalities, as to make and sign a contract, or sign and deliver a note. Black's Law

EXECUTION - Execution of contract includes performance of all acts necessary to render it complete as an instrument and imports idea that nothing remains to be done to make complete and effective contract. Black's Law

In any agreement, or contract, execution depends upon a fulfillment of contract provisions, and denies things not agreed upon by the principles of mutual assent. In relation to Article 2, Section 2, "...he shall take care that the laws be faithfully exercised..." the president is to take care that legislation signed into law (executed) are constitutional and and not repugnant to the founders mutual assent. And also means that he is required to over-see all executive branch organization that they operate in accordance to the plan (Constitution) in their day-to-day operations. That is the president's real day job.

"All contracts are to be construed according to the meaning of the parties at the time of making them... There is no difference in the constitution of government." John DeWitt: Boston American Herald, November 5, 1787

While dealing with this it might be good to comment on the word and exercise of Precedent. Progressives, much in former days and today, changed a lot of things without proper assent. Most obvious was the advent of basing the function of law upon the precedent set by court case conclusions rather than the mutual agreement of the provisions in the Constitution. Added, an emphasis of Supreme Court Rulings change the fundamental law instead of the States who's agreement is in question.

Using precedent as a base of rule began a progressive change in the plan (Constitution). Under the Constitution precedent is unconstitutional, misconstruction, and leads to abuse of government powers. It also breaches the Article VI oath of office.

The president of the United States is not the king of America with authority to establish law. His obligation is to be faithful to the Constitution, and the agreement States entered into when joining the Union. When this obligation is ignored, it is the job of the States to correct the error. If the States can't do that, doesn't that mean that Union (agreements between the States) is in breach?

It seems the people today are being required to stand up to abuse of powers in place of the States absence.

Dave

Posted by Dave Lyons on 03/19/10
Last updated 03/20/10

OPEN LETTER TO STATE GOVERNOR, Washington

cc: STATE ATTORNEY GENERAL

It has been said, the Tea Party participants are just AstroTurf. Could that really be true when they are a rapidly growing segment of our Citizen society? I don't think so.

But there is an AstroTurf segment of our society. It's the states. Let me explain. It was the States that appealed to We The People to authorize it to create a U.S. Constitution. Then, the States not only created fundamental Law, but a contractual agreement between the States. That also means that the States also are responsible to see that the provisions of the Constitution are kept in all cases of construction.

"On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." --Thomas Jefferson

A plan carefully constructed and agreed upon, was created in the Constitution. A part of that plan set up a structure that would secure the provisions, and individual Liberty. The States were parties; The people gave their assent; and the process of joining the Union was provided for in the Constitution. In addition, the federal government became a created creature of the agreement, with careful, specific instructions concerning its powers and operation. Early in its considerations a problem of powers was solved by a suggestion form Roger Sherman.

"Let there be two chambers. One to represent the People with proportionate representation; the other to represent the States with equal suffrage." Roger Sherman

Article 5 of the US Constitution grantees that the State will never be without equal suffrage in the Senate. But the States have allowed the Senate to answer directly to popular public opinion just as though the State is no longer represented. Amendment 17 doesn't change that, but the States have allowed it happen.

"...and that no state, without its consent, shall be deprived of its equal suffrage in the senate." Article V, U.S. Constitution

The Senate represents the State in federal congress. Among the Senator responsibility is to be a guardian of the agreement of Union. Here is a quote from the Enabling Act Providing for the Admission of Washington, and three other States into the Union.

"That the delegates to the convention elected as provided in this act shall meet at the seat of (Territory) government .... and after organization, shall declare, on behalf of the people of said proposed State(s), that they adopt the Constitution of the United States; whereupon the convention(s) shall be, and hereby, authorized to form constitution(s) and State government(s) for said proposed states, respectively .... The constitution(s) shall be republican in form, and ..... and not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence." From the agreement of Statehood membership (The Enabling Act, Sec. 4). (see the Legislative Manual of the State of Washington.)

"That all acts or parts of acts in conflict with the provisions of this act, whether passed by the legislature(s) of said Territory or by Congress, are hereby repealed." From Section 25, The Enabling Act

 Getting to the bottom line I can offer a look at this comment from Edmund Randolph:

 "The object of this 2nd branch (Senate) is to control the democratic branch (House of Representatives ) of the National Legislature." Edmund Randolph, First US Attorney General

Considering all this, we should be able to surmise that the object of the State is to control the federal Senate by use of its Senators. But that has not happened in recent years because the States have chosen to become AstroTurf. That's not what the Citizens want. It must be time for corrections by the States to stop mandates, other unconstitutional acts, and acts repugnant to the agreements of Union. The 17^th Amendment is no excuse.

.

Dave Lyons (sighed)

Dave Lyons

Posted by Dave Lyons on 01/06/10
Last updated 02/09/10

The Enabling Act: Conditions of Statehood -- Commentary

I shall begin with a quote from a recent article:

Quote

The Tenth Amendment to the Constitution for the United States guarantees to the states and their people all powers not granted to the federal government elsewhere in the constitution and reserves to the State and people of New Hampshire certain powers as they were understood at the time that New Hampshire ratified the Bill of Rights, particularly the Tenth Amendment in 1790. The guaranty of those powers is a matter of contract between the State and people of New Hampshire and the several States comprising the United States as of the time that the compact was agreed upon and adopted by New Hampshire and the several States comprising the United States.

Resist DC: NH Legislators Look to Nullify Federal Gun Laws
by Michael Boldin

End Quote

The Enabling Act of the Founders: The Agreement behind Statehood

SEC. 25. That all acts or parts of acts in conflict with the provisions of this act, whether passed by the legislatures of said Territories or by Congress, are hereby repealed. (10)

Approved, February 22, 1889. [25 U.S. Statutes at Large, c 180 p 676.]

Of course it's a contract, one agreed among the States. The States are the parties to the agreement, and the US Government is the created creature by the Constitution that provides the agreement of Union, and it, as any legal contract, it is enforceable. If not enforceable, it is null and void. If it's null and void, there is no membership in the Union.

But the agreement rules are based upon Mutual Assent from the time of ratification of the Constitution. The Constitutional conditions were authorized in the U.S. Constitution originally. To change those authorizations, it would take a properly created Amendment, and a super-majority of States, not by a whim of politicians.

When the parties to the agreement fails to abide by the conditions of membership, as in the Union, charges must be made the same way it is accomplished in any other enforceable agreement. Of course, a State wishing to claim State Sovereignty, exercising secession, or even appealing for redress of grievance do so claiming the 10^th Amendment. But it needs to show the conditions of the breach or default. That brings up the Enabling Act providing for admission to the Union of States.

So, we ask; "Were changes made in the agreement following the proper track?" The answer is, no.

So, what does the Constitution say about it?

Article VI of the Constitution reads; "All debts contracted, and engagements entered into, before the adoption of of this Constitution, shall be as valid against the United States under this Constitution, as under the confederation." This is a requirement put upon the States as well as the central government.

The Enabling Acts are the contract requirements the proposed States are supposed to conform to. The first proposed State requirement is for the State Delegates gathered to "Adopt" the U.S. Constitution. That's the same thing the States did when the Delegates at the first convention did. They had adopted the Constitution just like the proposed were required.
Now, back to Article VI. What was the "Engagement" related to all this, and actually carried over in effect by Article VI? It was the Perpetual Union of States created under the Confederation. The Agreements of Union, then, must recognize the provisions made there. States, Central, and proposed State, must adopt the Constitution as amended, and the changes made properly to the Enabling Act. Does anyone recall a gathering of Delegates in your States that changed the original Mutual Assent of the Enabling Act, or a properly created Amendment? Article VI requires it, and I can't think of an Amendment created to amend it.

So, what was the agreements between the States under the Confederation relating to this? Need I mention that they were individual sovereign political entities? Need I mention that the States authorized a Union with certain provisions? Those are the Engagements brought forward in Article VI, and changed only by what was agreed upon under Mutual Assent concerning what was Adopted. It is there that the Central government presents, and the States already in Union, present to the proposed new States. None of this implies that the States, or the central government, can arbitrarily change the provisions agreed upon even to the admission of Alaska and Hawaii.

And, it's these that present grounds of breach and default.

Some call the Constitution dead. If so, then there is tyranny and there are no grounds to exit Union, or even claim State Sovereignty.

Most ignore the Enabling Acts saying that it is no longer enforceable. If that's true, it's because it was so easy to breach. Compare Article I, Section 8; "not to exceeding ten miles square." Where did all those National Forests come from. Simple, they were created by breach of Engagements required by Article VI that required all new States to disclaim title to all public lands. King George had title claim on all vacant land and a lot more. He didn't grant title to one central American government. He granted title to twelve independent States by name. The Enabling Act required the new States to disclaim title to vacant property in Virgina because the new State was admitted on Equal Footing with the original States who did claim title, each of them to all vacant land throughout the new nation. This article begins to broach the proper path to secession; finally.

Some still say the Enabling Act is not enforcable anymore. If that's true, isn't membership in the Union merely voluntary then? That would make secession easy; or held together by force. Some say that the Revelutionary War changed everything including the Constitution. Seems to me that it is said many bullets were fired to accomplish that misdeed. But couldn't it also be said that one bullet restored the Republic and its Constitution?

Well, if I'm wrong, we have tyranny, and no grounds in law for secession; or a claim of Rights, or for demanding redress of grievance

But, enough of this from me, and my opinion. Except; don't listen to Hatch or others who imply that things were granted to federal government based upon newly defined Mutual Assent.

Dave