Saturday, January 26, 2013

Tracy gets the last word in the Williams-Tarum-Horwitz supremacy clause debate

Below is Tracy Tarum's response to the last post by Daniel Horwitz on the topic of the supremacy clause of the constitution. I am going to let Tracy have the last word.  Someone has to have the last word and it appears we are getting into reruns. This could go on and on. I have found this dialogue instructive of a divide between stains of thought of those on our side of the aisle. While I tend to side with the view of Daniel, I know that Tracy's view has wide appeal among many conservatives. I appreciate the thoughtful and spirited debate. While I am ending this point-counter point blog posting, any of the participants in this debate as well as anyone else is free to post a comment to any blog post. Comments are welcome. Following this post is a list of other post in this series as well as some related post. Thank you to Daniel, Tracy, and Gene for your contribution to this dialogue. Rod

 I’m saying that it is not our duty to submit ourselves to government

Tracy Tarum
by Tracy Tarum

First, I hate neither you nor Vandy.  In my picture I’m wearing a Vandy shirt, and I’ve been a Men’s Basketball Season Ticket holder for the last five seasons.  I did make the snide “top University” comment, referring to my displeasure that an alleged top University has failed to teach you such basic and important facts in the field in which they’re educating you; but neither is that “hatred” of nor discrediting the University.

And if a Marine recruit unjustly or incorrectly criticized Chesty Puller or James Mattis, I’m going to call that kid arrogant, condescending, and foolish.  Likewise, when a third-year college kid so disrespectfully (and incorrectly) criticizes Tami Kilmarx – co-founder of “The Salt and Light Institute;” responsible for bringing David Barton to town, and Glen Hughes – who has contributed untold hours and funds towards finding, funding, supporting, and promoting Conservative causes and candidates: I’m naturally inclined to show some aversion or contempt for such an attitude – but that’s not hatred.

Referring to me as “unhinged” and not “in the land of reality” doesn’t affect me even a little.  I deal in facts and reason; I’m someone who cannot be offended; don’t assume they bother me.  And if I had discredited you based solely on being a third year law student, it wouldn’t have been “completely reasonable.”  The correctness or incorrectness of your ideas and positions are what determine your credibility, not your age, education, or school of choice. Wow, I do sound unhinged…  Now…

It’s not your fault, but you grew up in the “everybody gets a trophy” and “your intentions make you right” generation.  So you naturally equate someone pointing out your errors as being “unhinged” or “not understanding your point.”  No, I did read your response and fully understood what I was critiquing – and your point was and still is wrong.  You misunderstood my point.

Though you don’t realize it, your bedrock belief is upon the notion that the fabric of society and the security and maintenance of our rights must be directed by “courts’ decisions;” and you give no indication whatever of understanding true Liberty, and what that actually entails – the unmolested possession of Natural rights.  You therefore mistakenly assert repeatedly that any law passed by the federal government supersedes all other laws passed by the States.  (You “say” you don’t; your arguments bare the obvious conclusion that you do…you assert time and time again that the only possible way for a federal law to be disregarded – even if passed outside the granted authority of that government, and even if clearly unconstitutional – is for a federal judge to overturn it.)

And I am telling you that that’s not correct; not if they reach beyond the established, agreed upon, and allowed – i.e. enumerated – powers.  And if the federal courts fail to invalidate violations thereof, States do have a right to do so themselves, and not adhere or comply.  Protection of that power is found in the 9th and 10th Amendments.  The idea that the States and their citizens must, as some assumed universal and inherent duty, follow all dictates of the federal government – to include even the invalid or otherwise unconstitutional – unless overruled by “Federal judges [the only ones who] have the power to nullify Federal law” is patently absurd and insane!!
Lest you disagree because I’m not a lawyer, let me offer the words of John Harris, a Friend of mine, a third-generation attorney, and leader within the TFA:
Only those federal laws which a) are enacted pursuant to an express delegated power set forth in the Constitution and b) which do not violate any provision(s) of the Bill of Rights are protected under the "supremacy clause". Those that do not meet each of these standards are ultra vires acts by the federal government - so says the Constitution.
Here’s our difference Daniel: you look to “what did the courts decide?” for your answers to what is and is not a right, and how the powers of government must function; I look to the studies and ideals of Locke, Montesquieu, Cicero, Pufendorf, Smith, Jefferson, Adams, Madison, Franklin, Bastiat, etc. for what Liberty actually is, and how governments should be formed and maintained to secure it. 
You ascribe to the courts all the power of government; I ascribe the body directly elected by the people as the source of the power of government.  It’s a difference between studying the origin and basis of Natural rights, and a notion to simply appreciate the “rights” government “allows”’ you – and an even more dangerous notion of vesting courts alone with the power to interpret.

I’m not saying that our country isn’t acting as you say it “should;” we are submitting ourselves to government as you portray it.  I’m saying that it is not our duty to live as such.  Our governments WERE NOT constructed as such; and we have ZERO obligations as human beings with Natural rights to live in such manner as to hinge our pursuits of happiness on 545 people; less still to merely nine.  Because whenever “Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and institute new Government, laying its foundation on such principles and organizing its powers in such form, as shall seem most likely to effect their Safety and Happiness…”  And when we find our government to be so far out of kilter with what seems most likely to affect our Safety and Happiness, “it is [our] right, it is [our] duty, to throw off such Government, and to provide new Guards for [our] future security.”  It is from this brilliant and timeless Declaration of Natural rights that we understand that any governmental authority acting outside its granted powers need not be respected.

Also, do yourself, true history, and Mr. Madison a favor, and never refer to him as “The Father of the Constitution.”  Madison hated it, stating in 1834 that; “You give me a credit to which I have no claim in calling me ‘the writer of the Constitution of the United States.’ This was not, like the fabled Goddess of Wisdom, the offspring of a single brain. It ought to be regarded as the work of many heads and many hands.” And reading his own “Notes of the Debates…” shows his suggestions were overruled far more than they were carried.  But since you brought him up, here are some words of wisdom from Mr. Madison:
"Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution."
Translation in part: the States created the federal government as a voluntary act, and may rescind that association at any time.  I don’t think it’s wise to do so, but it’s each State’s right.  It is apparent that you’ve never considered or studied the purpose of government, the necessary and intended structure of Republican government, the danger of consolidated power, Natural rights, and the studies of the origins of society – based on leaving the state of Nature to form Society, which necessarily also incorporates the proper purpose of the law.  That is why I suggested to you that you read Bastiat, Locke, Jefferson, Montesquieu, Pufendorf, etc.

And as you explain how my previous example would “likely play out,” you again perpetuate the notion that we are mandatorily subjugated to the federal government, against our will, with no relief available except the mercy of the courts, at the threat of loss of Liberty: which is the TEXTBOOK DEFINITION OF TYRANNY!!!  Do you not realize that if you were correct, we – as 50 separate States and an entire nation of individuals – would be living in a tyranny controlled by 545 people assembling in one city; and of that, nine-man, nearly-un-removable branch would be King?!  I am stating as fact that our foundation was not laid on such principles, nor our powers organized in such form, as to be forced to live as such.  Your assumptions as such are dead wrong!!

Lastly, your statement dealing with citizens having “a constitutional right to own “high-capacity” magazines…[and constitutionality of Exec. Orders]” by coming to the conclusion that we DON’T and that they ARE, is so mind-numbingly ignorant of the verbiage, purpose, and intent of the Constitution and the 2nd  Amendment, that I’ll not even bother addressing it other than to say that it’s scary how ignorant you are on that one. And judicial review is not the “bedrock of our constitutional system.  It was a hotly debated topic, has been severely abused, and in my mind and the minds of many is a dismal failure, and quite possibly the worst mistake our Founders made; and is in serious need of review and amending.

Though (especially after your “high-capacity” magazines comment…), I’d love to know the name of this “most respected and effective conservative legal scholars of the last century” you studied under.  Because either you weren’t listening to what you were taught, or the reverence is as misguided as Chief Justice, Law Professor, Constitutional Law Scholar, et al……

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

To read previous and related post in this series, see the links below:

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  1. I will let this be the final word on the issue, other than to say the following:

    It is impossible to have a reasoned debate with someone who believes that he has both a better understanding of constitutional law and the authority to overrule the Supreme Court of the United States. It is similarly impossible to argue with someone who invokes so-called “natural rights” to support his position. If you believe that your rights to own certain firearms and certain ammunition clips were bestowed upon you by God, then there’s very little that I or anyone else can do to convince you otherwise. As in most “debates” of this sort, claiming that God is on your side is something of a trump card. You are certainly entitled to believe that the word of God gives your position the credibility that it lacks otherwise, but I’m quite certain myself that you misunderstood Him.

    I honestly don’t mean to be offensive in saying this, but I will close with one final observation: I’ve gone back through each and every word of your essays, and I feel compelled to point out that your belief that armed resistance to our “tyrannical” Federal government is justifiable when Congress passes laws that are antithetical to your own personal interpretation of the Constitution, your unshakable certainty that the radical positions you hold are correct, your overly-aggressive tone, and even the very rhetoric that you cite to support your views— these things are almost indistinguishable from the beliefs, words and positions of one Timothy McVeigh, which quite frankly scares the hell out of me. Being willing to debate an issue means at least being open to the possibility that you can be convinced to adopt a contrary position should it prove to be superior. Your own views on this matter lie on the extreme of extremes, however, and it has become unmistakably clear to me that you cannot be moved off of them. As such, we’ll just have to agree to disagree, and leave it at that.

  2. Daniel,
    First let me apologize for showing arrogance and condescension in my opening reply. I responded as such because of the similar treatment you afforded my Friends Tami and Glen. Nonetheless, I hold myself to a higher standard, and while I don’t usually let emotion trump my internal resolve and fortitude, sometimes I slip; so I truly apologize for being rash and rude. Besides, it doesn’t help in any way to open a fruitful and meaningful discussion; rather serves to induce, from the outset, tensions, passions, prides, and prejudices which tend to hinder efficacious exchanges of ideas…

    Now, that said: when you say “It is impossible to have a reasoned debate with someone who believes that he has both a better understanding of constitutional law and the authority to overrule the Supreme Court of the United States” because I state my beliefs; I could logically rebut with “It is impossible to have a reasoned debate” with someone who states “To be clear, the fact that Mr. Williams was entirely correct…is not subject to debate,” or “Believing a state official can arrest a Federal agent…is every bit as dim as believing a state court can overrule a decision of the Supreme Court” or “Your belief…is completely and utterly wrong,” etc… So – you believe that your views are so superior that they’re “un-debatable;” yet say you can’t debate me because I believe in my views…and I am therefore unreasonable??

    Furthermore, you have completely misunderstood nearly everything I’ve stated, and made many assumptions along the way. For example: I never said one single time that State courts can overrule federal legislation, I’ve said States’ Legislatures – (the voice of the people) – can resist encroachments…

    So you don’t misunderstand – I’ve never said that you are wrong in your assessment and explanations of the workings of the court. If you reread everything I’ve said, you will find that not one single time have I told you that federal courts cannot overturn legislation (though I do argue that it’s a tried and failed experiment in government, and there should be a check on that power – because it’s been and is still being severely abused); I have simply said that your assertion “that the only way federal legislation can be overturned is through the courts” is inaccurate; that if that were the case it would be a clear violation of our Natural right to self-governance (as is best articulated in the Declaration of Independence); and that if that were true, it would be utter tyranny to the whims of a majority of nine individuals.

    Which brings me to this point: as an aspiring lawyer, this one statement of yours scares the ever-living hell out of me!! – “invokes so-called ‘natural rights’.” SO-CALLED Natural rights – are you kidding me??? If you don’t understand that you’re supposed to be protecting – as an attorney – the Natural rights of an individual; then what do you think you are supposed to be protecting?? If you don’t believe that certain rights are inherent at birth – of Nature or Nature’s God – then the only other logical alternative is a belief that rights are grants from government: i.e. positive law. If you believe that rights are granted by the government, then it goes without saying that they can be rescinded by such government at any time for any reason – say rescinding the “right” (which if they are “granted” then they are privileges anyway, not rights…) of the people to bear military style weapons, “high-capacity” magazines, etc. That would explain, without necessity of further investigation, why you feel so strongly that the right to possess semi-automatic firearms and magazines of whatever capacity as a means of protecting oneself can so haphazardly be restricted by the government. (However, if you want to assume that we are founded upon positive law, then I will need for you to provide me one shred of evidence that we were founded as such, and therefore subjected to life as such.)

  3. Imagine a Secret Service agent who knows that his job is to protect something, but not knowing for sure what that something was, while having a vague sense that it’s something important, but having no clue whatever that it was to protect the POTUS…or worse yet, to not even know for sure what the POTUS looked like or who he was. Imagine the consternation you would feel knowing such details. Well that pretty much sums my dismay at learning that we have an aspiring attorney – the job of which is to protect the Natural rights of their client, and attempting to ensure that our laws don’t infringe upon the Constitutionally protected Natural rights of our populace – who refers to Natural rights as “so-called;” who therefore doesn’t understand that Natural rights flow inherently at birth from God, or Nature’s God; and who therefore thinks that “invoking” these Natural rights is meaningless, makes it “impossible to argue with,” and turns God from the source of Liberty, into a “trump card.” Yes, Daniel, I too agree that it may be impossible to “argue” with someone who thinks as such.

    Furthermore, your statements about nullification are great first-steps in a debate for/against nullification, but are not conclusive. Nullification has never been proven successful or unsuccessful. States have at times attempted nullification, but it’s never been challenged because either legislation was enacted to soothe the problem that caused the threat of nullification, or the offending party was thrown out in the ensuing election(s). But one thing is obvious by simple common sense and an adherence to Natural law: “courts” should have zero involvement in matters of nullification. Nullification is a struggle of governmental forces jockeying for the proper distribution of powers – not between branches of government, but bodies of government (State v. federal). The only body of government that should be involved in such matters is the voice of the People, the Legislature; not a branch of the government created by the People, attempting to restrict the will of the people to alter said form of government – which would be an obvious conflict of interest, and illogical roadblock to enacting the will of the people.

    And as a hypothetical: while most any logical person would agree that a single State voting in its legislature that it will not adhere to a federal law (i.e. ObamaCare) would be a violation of the purpose, intent, and powers of the federal government; it is equally as obvious to any logical person that if the all 50 States’ Legislature’s passed legislation stating that they will not adhere to a federal law they found to be intrusive and damaging (i.e. ObamaCare), that it would be the classic definition of tyranny for the federal government to attempt to force the offensive legislation upon the States anyway, against their obvious will – regardless of what any “courts” did or didn’t decide; or for that matter, if it was ever even presented to them. That is what I’ve said – that your assertion that federal courts are “the only means” for States to be protected against federal intrusion is simply not true or logical; and if it were true, it would be unarguable tyranny: that is not me saying the government is tyrannical, it is me saying that it would be tyrannical if we were subjected to such nonsense.

  4. But, thanks to our Founders being so wise, so virtuous, so studied, so selfless… we were founded upon the premise of governments existing for no other purpose than the protection of Man’s inherent Natural rights, not being formed as all-powerful bodies which possess the right to enslave the populace regardless of the intent of the majority – which is why the 2nd Amendment exists and is so important; as another guarantee against the threat of tyranny, by offering a means of resistance. Not that it was expected to happen, rather that the mere threat was likely to ensure it never would happen: which explains Thomas Jefferson’s words to George Washington on 19 Jun, 1796; “…one loves to possess arms, tho they hope never to have occasion for them.” (Sorry, I know you hate those dreadful quotes from our Founders, but nonetheless, I had to throw a little bit more of that “rhetoric” in there…)

    Now, last but not least: if you’ve sincerely “gone back through each and every word” I’ve written, then I implore you to do so again – because it’s clear that some preconceived notion you hold is influencing what you’re reading, and causing you to see words and ideas that are, in fact, not actually there. Because in truth, you will find that;

    a.) not one time did I say our government was tyrannical; I said that it would be if we had no means to resist;
    b.) not one time did I say or loosely imply that an individual has any right or responsibility to form an armed resistance – or offensive force – against a government because it didn’t agree with his interpretation of the Constitution; I’ve said that State governments have a DUTY to do so if Liberty is being threatened.

    So don’t worry – you didn’t sound in any way “offensive,” you sounded like someone making irrational and emotional conclusions, like someone who would rather talk in hyperbole and rhetoric than logic and truth, and like someone who thinks he can sidestep logical debate by saying “oooh, you sound like a mass-murdering bomber; you scare the hell out of me.” So if you’re too illogical and emotional to sustain a reasonable debate, then this will in fact be the last word. And while I initially had hopes of a fruitful debate, I’m not sure that’s possible anymore with someone who doesn’t recognize the existence and importance of Natural rights – when the topic is THE PURPOSE OF GOVERNMENT and the proper application of THE LAW under the American system of government!!!

    In short, you sound much more like a sad by-product of the “I’m right because I want to be, and I got a trophy for trying” generation. Yes, I know I’ve brought that up before, but it needs to be illustrated what this mentality is doing to our children. And unfortunately, Daniel, in this discussion you appear to be “Exhibit (A.)”……

  5. Wow, I love Tracy Tarum.