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What Is, And What Is Not, Within The Power Of The State

A legal debunk of "emergency powers" pretenses, followed by some commentary on what must-- and what must not-- change in the "post-Covid-19 world".

AMERICANS DON'T CREATE GOVERNMENTS in order to have their lives micromanaged. Americans don't WANT their lives micromanaged.

Nor do Americans empower governments to compel their obedience in any regard, other than per authority expressly and deliberately delegated-- by super-majorities of the population as a whole, after due consideration and debate-- concerning the relevant area or issue. Further, such authority is always circumscribed by rules as to its scope and the manner in which, and purposes for which, it can be exercised.

IN FACT, WE AMERICANS CREATE GOVERNMENTS solely to accomplish a small number of things which the super-majority agrees in advance are needed, and feel cannot be properly accomplished by individuals acting alone, or by reliance on the natural and spontaneous dynamics of society. The state (by which is meant here both the federal entity operating out of Washington, DC and each of the several states) has no authority to do anything else, and can command nothing except as necessary to the accomplishment of that small number of things (and while keeping within the limits of all Constitutional prescriptions and proscriptions on its behavior).

Everything beyond that small number of things delegated to the state (on good behavior, and subject to all the rules and restrictions imposed) is left to society and the people as individuals. And that small number of delegated things can be withdrawn from the state's portfolio at any time by the people, to whom complete authority over all of it actually belongs.

In no regard and under no circumstances has the state been authorized to act simply as its officeholders see fit, and to compel our participation and cooperation with those decisions. Indeed, the state cannot be so authorized, under a Constitutional system.

HERE'S THE CONSTITUTIONAL LAW 101 PROBLEM with state officeholders "exercising discretion": Any provision (or doctrine) purporting to authorize any such thing would have those officeholders determining the scope and limits of their authority for themselves. This necessarily and inescapably would mean that such officeholders would be exercising "authority" which has not been delegated to them.

Under such provisions or doctrine, our elected officials would thereby really be rulers-- kings and queens, in fact, even if each only in a designated sphere-- rather than servants chosen to accomplish specified tasks to which we had set them.

Such a provision or doctrine would be inherently violative of the sovereignty of the people (and thus void ab initio). It would also be at war with every principle of Constitutional government, in which the state's powers are spelled out for the very purpose of precluding the exercise of indeterminate "autoritah", and the Constitution doesn't simply provide for the selection of officers, leaving all further decisions as to what powers to exercise, and how, to the wisdom and good character of the angels who would then be chosen by the prescribed methods.

Needless to say, however much the chief skill of politicians is the misrepresentation of his or her character, angels are not available to be chosen for these offices. As James Madison dryly put it in Federalist No. 51, observing that limits and controls on the scope of the state's power must therefore be imposed Constitutionally:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

Jefferson put it more bluntly:

"[L]et no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

IN LIGHT OF ALL THE FOREGOING, it is clear that there is, and can be, no such thing as an "emergency" power possessed by the state in a Constitutional system. Even our current state's own grand pooh-bahs of presumed authority to determine the state's authority says so:

"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government."

-US Supreme Court, Ex parte Milligan, 71 U.S. 2 (1866) (Unanimous decision)

Actions outside the provisions of the Constitution amount to a suspension of the Constitution, in which it is specified that the state may exercise no power not expressly delegated to it by the people:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Tenth Article of Amendment, U.S. Constitution

The Constitutions of the several states contain the same provisions limiting those states to delegated authority. In Michigan's, for instance, we find this as the very first provision of the very first Article:

§ 1 Political power.

All political power is inherent in the people. Government is instituted for their equal benefit, security and protection.

All power being inherent in the people, the state has none which is not delegated to it by way of the people's Constitution. As observed above, open-ended, unspecific "emergency powers", or other provisions by which the state's officers determine for themselves the scope and limits of their authority cannot co-exist with a structure of delegated authority and powers.

You can have a king or you can have a Constitution-- you can't have both. Since state officials only have offices to hold at all by virtue of the Constitution, they cannot exercise the power of kings, even if fires rage and floods follow.

FURTHER, AND PARTICULARLY RELEVANT to the matter of alleged "emergency powers", in the US Constitution, the very first section of Article I specifies that:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Michigan's Constitution lays down the same rule, as section 1 of Article IV (bracketed clarifications are mine):

§ 1 Legislative power.

Sec. 1. Except to the extent limited or abrogated by article IV, section 6 [providing for an Independent citizens redistricting commission] or article V, section 2 [allowing the governor to rearrange or reassign functions with the legislatively-established executive branch, subject to approval by the legislature where having the character of law], the legislative power of the State of Michigan is vested in a senate and a house of representatives.

...with the exclusivity aspect expressly declared in section 2 of Article III:

§ 2 Separation of powers of government.

The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.

So-called "emergency powers" invariably amount to autocratic powers-- that is, decrees purporting to have the effect and authority of general laws, despite being delivered by something other than the legislature. Per the foregoing express provisions of both the US and (again as an example of a state Constitution) Michigan Constitutions, this is illegal.

It doesn't matter why such powers are usurped; there are no exceptions-- "emergency" or otherwise-- making the usurpations legal.

Indeed, the US Constitution lacks the word "emergency" completely.

Michigan's Constitution does contain the term, but only in three places-- none of which create an autocratic emergency exception to the separation of powers rule. One, at Art. IV, § 39, allows the legislature (not the executive) to make certain temporary succession provisions for the purpose of continuity of government in the face of "disasters occurring in this state caused by enemy attack on the United States". The others, at Art. IX, §§ 25 & 27, provide for abrogation of certain tax caps-- by the legislature (not the executive)-- in cases of revenue emergencies-- if declared by the legislature (not by the executive).

In short, not even the legislatures, federal or state, can provide or "redelegate" law-making power-- for emergency purposes or any other-- to any autocrat, whether in the executive branch or elsewhere. In relying on such measures (such as Michigan's governor resorting to the 1945 "Emergency Powers Of Governor" act or the 1976 "Emergency Management Act") autocrats turn to legislation that is flatly unconstitutional.

Executives can be authorized by "emergency" legislation to shuffle workers and assignments in their own branch about, and to create or reorganize or dissolve executive departments, and so forth, by "executive orders" and other such autocratic decrees. But they can't be authorized to dictate to the general public as though their declaration of an "emergency"-- or even the legislature's declaration of an "emergency"-- works as an "off" switch to the Constitution and legitimizes their assumption-- or even the legislature's assumption-- of the power wielded by Josef Stalin in the 1930s USSR.

The Legislative cannot transfer the power of making laws to any other hands. For it being but a delegated power from the People, they, who have it, cannot pass it over to others. . . . And when the people have said, We will submit to rules, and be govern'd by laws made by such men, and in such forms, nobody else can say other men shall make laws for them; nor can the people be bound by any laws but such as are enacted by those, whom they have chosen, and authorised to make laws for them. The power of the Legislative being derived from the People by a positive voluntary grant and institution, can be no other, than what the positive grant conveyed, which being only to make laws, and not to make legislators, the Legislative can have no power to transfer their authority of making laws, and place it in other hands.

-John Locke, Second Treatise on Government

Indeed, the very issuing of such orders is a criminal attempt to deprive people of their rights under color of law. Any attempt to enforce such orders is likewise criminal.

The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it's enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.

No repeal of an enactment is necessary, since an unconstitutional law is void. The general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it.

16 Am Jur 2d, Sec 256

NONE OF THIS MEANS that there is no way for America-- or portions thereof-- to respond to emergencies, of course. It just means that such responses are left in the hands of individuals.

Individuals responding to emergencies, or exercising any other authority not delegated to any institution, may very well choose to act in exactly the way that an authorized state might ordain. Or, they may not. Either way they are free to look out for their individual interests in whatever ways seem best to them.

Either way, the state can in no way hinder those individual decisions or dictate others, in any way outside the normal, Constitutionally-prescribed procedures. Either way, there can be no citizen-affecting laws other than as enacted by the legislature and signed by the executive in the normal fashion.

Beyond just the requirement for "normalcy" in the enactment process, laws enacted during "emergencies" cannot exceed the normal limits of scope and character to which state power is confined. There can be no "special emergency law" exceptions.

No such law can compromise the citizen's right to travel as he/she sees fit; to assemble as he/she sees fit; to worship as he/she sees fit; or to conduct a business or engage in other honest economic activity as he/she sees fit. In short, no law, even in emergencies, can hinder a citizen in his or her exercise and enjoyment of all rights and liberties unless and until convicted of a "normal times" crime.

SIMILARLY, JUST AS THERE IS NO indeterminate "emergency power" in the state, there is no such thing as a valid "continuity of government" protocol outside of what is prescribed in the Constitution. If a situation arises in which Constitutional prescriptions for the transfer of power cannot be followed, then the state becomes entirely void-- entirely without authority in any regard or any office.

Indeed, in such circumstances the state is no longer in existence at all. Whatever happens next will be up to the people writing on a tabula rosa.

What follows could, and likely would, model or recreate in large part the prior Constitutional structure (though with such modifications as would guard against the insufficiencies that led to its dissolution-- such as, perhaps, a clearer rendering of the "express powers" doctrine embodied in its design than is currently provided by the Ninth and Tenth Amendments). But in the meantime, the prior structure and all its works are dust.

Any actor coming forth in the interim on the basis of some "continuity of government" plan (or purporting to exercise any other kind of "emergency power") would be as illegitimate as your neighbor Joe's attempt to exploit the situation and declare himself king.

Indeed, it would be the duty of every American to arrest as a would-be tyrant anyone alleging him- or herself to be cloaked in authority under some act of the former state. That former state would no longer exists and was never authorized to appoint or establish a post- or extra-Constitutional "continuity government" in the first place.

SPEAKING OF DUTIES, let's take in the words of one man whose reasoning and spirit were among the chief guides and inspirations for the American enlightenment reflected in the Declaration of Independence and the various American Constitutions. This particular admonition is especially apropos as we consider how to respond to the current situation here in the "land of the free and the home of the brave":

"Any single man must judge for himself whether circumstances warrant obedience or resistance to the commands of the civil magistrate; we are all qualified, entitled, and morally obliged to evaluate the conduct of our rulers. This political judgment, moreover, is not simply or primarily a right, but like self-preservation, a duty to God. As such it is a judgment that men cannot part with according to the God of Nature. It is the first and foremost of our inalienable rights without which we can preserve no other"

-John Locke

Thomas Jefferson, again, puts it more succinctly:

"A free people claim their rights as derived from the laws of nature, and not as the gift of their chief magistrate"

Heed these words. THESE WORDS summarize the law, and most especially the law in times of "emergency".

Every "emergency" decree is unlawful, and tolerating them establishes a hugely dangerous precedent, habituating the American people to allowing themselves to be bound and made helpless, and inviting more and worse experiments upon our liberty. Let it not be so.

"It is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle."

-James Madison

(NOTE: "Emergency powers" acts have long been on the books in both the United States and in various of the several states. They have occasionally been upheld by courts-- usually under manifestly specious "reasoning" well-represented by the absurd rationale of certain jurists in various cases to the effect that "the Constitution is not a suicide pact".

This pompous declaration proposes that the means truly needed for dealing successfully with various exigencies cannot be accomplished in any manner whatever without violation of Constitutional provisions. In reality, the matter is simply that adhering to Constitutional provisions-- as the state must do, or be bereft of authority entirely-- is less convenient than some preferred alternative.

I mention this to forearm everyone with the open-eyed expectation of some pushback citing to such judicial decisions when presenting the arguments above in the public fora, and with a weapon against it which just requires confidence and resolve to be wielded effectively. This might help, too.)

But while we're on the subject of "suicide pacts", lets drill down a bit...

PART II- The Jim Jones Syndrome

...or, why and how the Constitution is not a suicide pact.

I BEGAN THESE COMMENTS with a drill-down on the legal reasons for the invalidity of so-called "emergency" powers claimed by every autocrat from Donald Trump on down to even less-qualified political pip-squeaks like Gavin Newsom of California and Gretchen Whitmer of Michigan. Now I'm going to take a look at why free and sovereign people set things up that way.

As noted above, the simple fact that a state is created by a sovereign people through the mechanism of a Constitution in which certain powers are expressly delegated imposes the prohibition on "emergency" powers. This is true due to the very nature of such a Constitutional structure.

But the prohibition of "emergency" powers is not just a fortuitous happenstance. Very explicit and positive interests  are protected by that particular aspect of Constitutional establishment.

BEYOND THE FACT THAT WHAT IS neither articulated nor anticipated cannot be delegated at all, one big reason we, the people never delegated "emergency-do-whatever-you-think-you-must" powers to our governments is simple self-interest. We wanted to protect ourselves from being forcibly afflicted with the consequences of bad decisions.

As sensible people, our Founders and Framers knew full well that "emergency" decisions are made either in panic, despair or hubris by incompetent or deluded leaders (the "Jim Jones" syndrome) or through political career-security calculations which naturally default to hyper-(and often paralytic)-caution (the "FDA approval process" effect) and/or produce the unwanted accretion of power in state offices.

Our Founders and Framers designed things so that wiser or more cool-headed (or even just foolhardy but nonetheless free and sovereign) individuals could never be lawfully compelled to drink the Kool-Aid or suffer harms from bad policy like livestock in a barn after the farmer drops a lit cigarette from shock-frozen fingers.

ALTHOUGH THE EXPRESSION HAS BEEN ABUSED by shameless statists to argue precisely the opposite point, and to justify exactly the sort of destructions of liberty and the rule of law it is actually designed to protect, the Constitution is not a suicide pact. That is, our Constitutions neither provide for, nor allow, the state to subject everyone in America to the disastrous consequences of frothy madness, even should every "official" and the majority of the citizenry succumb.

In short, no authority is granted to those officials to compel sober-minded or courageous (or even foolhardy) Americans to join their panicky neighbors in stampeding over any cliffs.

H/T to the excellent Brian Harriss, who sent me the Buffalo Stampede painting used in this graphic.

OF COURSE, DESPITE THE FOUNDERS' care in forestalling legal compulsion of Kool-Aid consumption, it falls to each of us to keep our heads and say no when the noxious stuff is offered-- or, more likely, thrust upon us. Those doing such thrusting are seldom inclined (or even cognitively equipped) to recognize or acknowledge the limits on their authoritah.

So, teach your children well, turn down the Kool-Aid, and be proper inhabitants of the "land of the free and the home of the brave". The liberty and livelihood you protect will be your own.

PART III-- About That "Everything Must Change" Notion...

We don't need any change in our society or political structure-- we just need to resume enforcing our political structure.

THE ONLY THING THAT MUST CHANGE (or should be allowed to change) post-Covid-19 hysteria is the size of the state. As it has done so many times before, the overgrown state has just subjected America to a ferocious hobgoblin-flogging in service of the agendas of its operators and their cronies and clients. It is that hobgoblin-flogging that has done all the harm and it is that against which we must protect ourselves.

In this day and age of potentially-unlimited journalistic diffusion-- in which there are no natural bottlenecks, gatekeepers and filters--the state's operators were only able to subject the country to the panic and the resulting opportunistic oppression, destruction and looting by virtue of its massive size and influence. There is only one solution to that problem:

AMERICA MUST LEARN AND EMBRACE THE CtC REMEDY, and shrink this bitch into relative harmlessness.

BTW, at the same time that we act to spread CtC's revelations and empower our brothers and sisters across the land to begin downsizing the DCvers (and their counterparts in the several statehouses), YOU, and everyone you can reach-- MUST also study and learn the fascinating truth about the Fourth Amendment. This is the means by which we can be spared another massive ratchet-up of the surveillance state.

That surveillance-state ratchet-up is surely among the primary purposes for the inflation of the Covid-19 nothing-burger into the Blob that ate West Texas (or into Godzilla, or the zombie apocalypse, or whatever is your favorite sky-is-falling, dogs-and-cats-living-together nightmare scenario). The ratchet-up must be prevented, and the existing panopticon must be blinded.

The knowledge of the true meaning of the terms in the Fourth Amendment will accomplish both those things, when widely enough known. Make it so.

***

ANOTHER KEY GOAL of those trying to exploit the latest convenient "crisis" is the elimination of money. Perhaps I should say, the completion of the elimination of money.

Here the idea is to be rid of physical trade tokens-- tokens which people can keep in their own hands and therefore preserve, protect and always have available to facilitate autonomous freedom of action. These physical objects-- be they gold and silver coins or even just pieces of paper-- are to be "replaced" with a mere digital record of credit, the availability and use of which rests on the good graces of whoever has the power to access the account on the backend.

The pretext, of course, is that physical tokens are disease vectors, going from one hand to another. Unremarked is the fact that every single product that changes hands in the marketplace is exactly the same in this regard, and thus, eliminating physical money offers no meaningful benefit vis a vis viral transmission...

THE POINTLESSNESS OF THE DISEASE-VECTOR THING goes unremarked because it is irrelevant. The real point of the elimination of physical money is to put control over the availability, use and debiting of everyone's wealth-- which means control over everyone generally-- in the hands of the state.

Imagine how simple it will become to suppress dissent or thwart efforts to abolish an existing intolerable state when the ability of any dissenter to purchase gas, food, electricity, etc.-- once he or she has been revealed by speaking up-- can simply be turned off with a keystroke. Such folks won't even be able to be supported at a subsistence-level by sympathizers, whose deviations from their own normal consumption will expose them in turn.

The result will soon be that no dissenting word is spoken to begin with-- or, at least, not by way of any medium capable of reaching more than a few eyes or ears, all of which are monitored 24/7.

And, of course, that monitoring will be enormously enhanced by a switch to digital currency. Not only will everyone's access to his or her purchasing power be put within the control of others, but from that point forward every purchase will be recorded-- place, item or service, buyer and seller.

DO THESE FEARS SOUND FANCIFUL? To a greater or lesser degree, they are already being realized.

Here, so far, the toe is in the water with private-sector deplatforming of those with disfavored views, and just a bit of state-operated control, so far, in the form of laws against so-called "hate-speech" and disfavored political and policy-related behavior. In China, state-imposed "social credit" structures already control access to goods, services, platforms and facilities, punishing with debilitating limits those who act in ways displeasing to the state.

There is a great deal more that could be said about this "digital currency" plan, but what is already discussed should be more than enough to make clear its complete unacceptability. Stand firm with the Constitution, which prescribes the state's ability to coin money, only, and prohibits the several states from making anything but gold and silver coin a tender in payment of debts.

***

THE FOREGOING WILL HAVE TO BE ENOUGH FOR NOW, I suppose. But it IS enough to make clear the dire threats we face right now-- which can be said with no exaggeration involved.

Some mean to use this contrived "Covid-19 crisis" to complete the ongoing destruction of the American experiment of individual sovereignty and liberty under the true rule of law-- an assault begun early in the 20th Century and actually capturing ground at an increasingly rapid pace since the 1940s. These evil actors (and their merely ignorant and deluded tools) mean to transform America into just a "modern" version of the ancient nightmares from which our founding ancestors managed to awaken not all that long ago.

I hope everyone will rise to this very immediately-dire occasion and crush all efforts to embed in the American consciousness the habit of subordination to unconstitutional edicts from the state based on alleged "emergency" circumstances, or expansion (or political rehabilitation) of the panopticon, or the elimination or undermining of freedom-favoring physical currency and the habit of its use.

Once again, all that should change as a result of what has been learned from the "Covid-19 crisis" is the shrinkage of the ever-more-nakedly dangerous unbridled and Leviathan state.

Once again, PLEASE study and spread and support-- with vigorous words and deeds-- the CtC remedy , and the fascinating and state-restraining truth about the Fourth Amendment, as well.

Supreme Court Justice William O. Douglas graced us with this very effective bon mot many years ago:

"As nightfall does not come at once, neither does oppression. In both instances, there's a twilight where everything remains seemingly unchanged, and it is in such twilight that we must be aware of change in the air, however slight, lest we become unwitting victims of the darkness."

The words resonate, do they not? They give their reader a chill, and a healthy bit of raised consciousness to go with it.

And yet, their measure was better-suited to the time, more than forty years ago, in which they were composed.

Today, we're not really being warned of darkness creeping forward by merely a slight change in the air. Rather, we are being treated to a stiff, cold and unmistakable wind of warning, by which the wise will be given a good deal more than simply a chill.

Woe, as well as shame, will be ours should we not take heed and rise up in action against the danger.