Dr. Edwin Vieira, Jr.,
March 7, 2017
Pace the Court, however, “this textual exegesis” is certainly far more than merely “suggest[ive]”. For no one could possibly believe that aliens may demand entry into this country while exercising a purported “right” under color of the Second Amendment “to keep and bear Arms” in their hands, or (more specifically) that armed Moslem jihadists intent upon imposing Sharia by means of the “‘[p]olitical power [which] grows out of the barrel of a gun’” may demand entry under color of the Second and Tenth Amendments combined. Compare Mao Tse-tung, Quotations from Chairman Mao Tse-tung (Peking, China: Foreign Languages Press, 1966) at 61, with Arthur L. Corbin, “Legal Analysis and Terminology”, 29 Yale Law Journal 163 (1919), at 168-169 (definition of a legal “power”).
Going further, the Court in Verdugo-Urquidez pointed out that previous cases which have applied principles of equal protection and due process to aliens “establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” 494 U.S. at 271. “‘In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules which would be unacceptable if applied to citizens’”. Id. at 273, quoting Mathews v. Diaz, 426 U.S. 67, 79-80 (1976).
In the light of these precedents, the recent decision in Washington v. Trump, No. 17-35105 (9th Cir., 9 February 2017), purporting to uphold a temporary stay of President Trump’s recent Executive Order on immigration, is (to borrow Bentham’s deprecatory phrase) “nonsense on stilts”. Yet in the latter decision this country witnesses what the White House’s post calls “our judicial system” being intentionally misused by “useful idiots” within the political hierarchies of the States of Washington and Minnesota in order to frustrate the constitutional authority of Congress and the Executive! How should President Trump respond? Recently, the noted journalist and author Seth Lipsky asked me whether Article IV, Section 4 of the Constitution applies to this problem; so I shall take that provision as an example of what President Trump and his legal advisors should consider—
The Constitution commands that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion”. Art. IV, § 4. Which implies, of course, that no State can claim a license either (i) to set aside her own “Republican Form of Government” or expose her own citizens to an “Invasion”, or (ii) to obstruct the United States in their execution of their constitutional power and duty to “guarantee * * * a Republican Form of Government” within that State’s territory and “protect” that State’s citizens “against Invasion” by whatever means may be available to the General Government. And without any necessity for any State subject to an “Invasion” to agree to the United States’ exercise of their constitutional duty to deal with that affliction—for, unlike the second clause of Article IV, Section 4, which requires an “Application of the Legislature [of a State], or of the Executive (when the Legislature cannot be convened)”, before the United States may “protect” a State “against domestic Violence”, the first clause imposes no such restriction.
Now, even were contemporary neo-Bolsheviks, other subversives of various persuasions, and assorted “useful idiots” not working tirelessly to promote irreconcilable social divisions through “Invasion[s]” of aliens indisposed to assimilate (or, worse yet, predisposed not to assimilate) to traditional American culture, such immigration would inevitably destroy “a Republican Form of Government” in each of the several States. What the Constitution describes as “a Republican Form of Government” is “one constructed on th[e] principle, that the Supreme Power resides in the body of the people”. Compare U.S. Const. art. IV, § 4 with Chisholm v. Georgia, 2 U.S. (2 Dallas) 419, 457 (1793) (opinion of Wilson, J.). If, however, the United States no longer consist of one “people”, substantially united in political understanding and purpose, maintenance of “a Republican Form of Government” in any of the several States is impossible. Inasmuch as, whether by conscious design or merely by its unintended consequence, unlimited immigration precludes such unity, it fatally threatens “a Republican Form of Government” in every State. Which (among other reasons) is why the Constitution provides that “[t]he Migration or Importation of such Persons as any of the States now existing [i.e., as of 1788] shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight”—thereby recognizing the plenary power of Congress to “prohibit[ ]” any and all such “Migration or Importation” in those States after that date, and in all other States at any time. U.S. Const. art. I, § 9, cl. 1. And that is why (among other reasons) the Constitution delegates to Congress the allied powers “[t]o establish an uniform Rule of Naturalization” (as to “Migration”), “[t]o regulate Commerce with foreign Nations * * * and with the Indian Tribes” (as to “Importation”), “[t]o provide for calling forth the Militia to execute the Laws of the Union[ and] repel Invasions”, and “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”. U.S. Const. art. I, § 8, cls. 4, 3, 15, and 18. For through the exercise of these powers by Congress and the execution by the President of the statutes Congress enacts pursuant to them, “[t]he United States” can “guarantee to every State in this Union a Republican Form of Government” by “protect[ing] each of them against Invasion” by aliens.
Moreover, the Second Amendment refers to “the security of a free State”, as to which it declares that “[a] well regulated Militia” is “necessary”. The term “a free State” is a general conception, to which (in the estimation of the Founders) all of “the several States” conformed at the time (1791) and were expected always to conform thereafter (along with such other States as later entered the Union). The term “free State” is perhaps best understood by consideration of the German noun “Freistaat” (literally, “free state”), the primary meaning of which is “republic”, with the adjectival form, “freistaatlich”, meaning “republican”. Thus, the term “a free State” in the Second Amendment should be equated with the term “a Republican Form of Government” in the original Constitution, such that “a free State” denotes a polity “constructed on th[e] principle, that the Supreme Power resides in the body of the people”. And, plainly enough, no “free State”can enjoy “security” when it is exposed to incessant “Invasion[s]” by aliens. So, just as “[a] well regulated Militia” is “necessary to the security of a free State”, such a Militia is necessary to the security of a “Republican Form of Government” free from the fear, let alone the actuality, of “Invasion”. This should be obvious, because the essence of both “a free State” and “a Republican Form of Government” is that “the Supreme Power resides in the body of the people”, and “a well regulated militia[ is] composed of the body of the people”. See Virginia Declaration of Rights (1776) art. 13 (emphases supplied). In particular, then, by executing “the Laws of the Union” so as to “repel Invasions” of illegal aliens when other components of the Constitution’s federal system prove themselves inadequate or even inimical to that task, the Militia can guarantee (as can no other institutions) that “the Supreme Power [always] resides in the body of the [American] people” who themselves make up the Militia, rather than being gradually usurped by foreign interlopers with no conceivable claim to any portion of that “Power”. See U.S. Const. art. I, § 8, cl. 15.
Inasmuch as issues arising under Article IV, Section 4 typically involve “political questions” as to which the Judiciary is constitutionally incompetent to afford relief to parties challenging the actions of Congress and the Executive, President Trump can—and should—simply disregard aberrant decisions such as Washington v. Trump (while, of course, providing the public with a complete explanation for his actions). See, e.g., Luther v. Borden, 48 U.S. (7 Howard) 1 (1849). And both he and Congress enjoy other, even more potent means to deal with rogue judges. See, e.g., my book How To Dethrone the Imperial Judiciary (San Antonio, Texas: Vision Forum Ministries, 2004). Whether the President’s legal advisors will properly instruct him—and steady his nerves—on these matters remains uncertain, though.
6. The White House’s post concludes with the truism that “[i]t is the first duty of government to keep the innocent safe”, and emphasizes the application of this duty to “especially those Americans who have not known safe neighborhoods for a very long time”. This is all well and good, as far as it goes. Yet it does not go nearly far enough. For the most serious threat to the safety of “the good People” throughout this country is not simply everyday “street crime” (as bad as that may be), but instead the crescent neo-Bolshevist “color revolution” for which the streets constitute merely one theater of operations.
The architects of America’s emergent “color revolution” have honed their theory of “régime change” to a razor’s edge, and tested it in various places around the world with some notable success. Throughout this country its practitioners in the Rotenfrontkämpferbund are numerous, well organized, adequately funded, and fanatic (if not lunatic) in their willingness to apply whatever measures of rhetorical and even physical violence they deem expedient to smash all opposition to their demands. The big “mainstream media”, choruses of puffed-up political pundits, and gaggles of goofy “celebrities” apologize for, encourage, and even glamorize these tactics. And rogue public officials at every level of the federal system openly lend their support to the revolutionaries. The goal of this “color revolution” is to render America effectively ungovernable during President Trump’s tenure, by impugning the legitimacy of any and every law, governmental policy, and action of his Administration that contradicts a single jot or tittle of the neo-Bolsheviks’ agenda—enforcing these incessant complaints with massive orchestrated disruptions of the political, legal, and social order, thereby creating a new order based upon chaos, on the strength of which the neo-Bolsheviks hope to usurp the power of “a state within the state”, with President Trump reduced to an impotent, ridiculous “bubblehead”.
At first glance, “the color revolution’s” reliance on strong-arm tactics appears to impale this country on the horns of a dilemma (which, no doubt, is the neo-Bolsheviks’ intention). On the one hand, “the good People” cannot be left to the mercy of neo-Bolshevist thugs, unable to protect themselves unless they turn to the kind of ad hoc self-help that smacks of vigilantism—for that will reduce this country to an ungovernable condition, inasmuch as “order” imposed without “law” (other than “the law of the jungle”) is not “government” at all. Yet, on the other hand, true constitutionalists must stand firm against the all-too-natural inclination of ordinary citizens assaulted by massive social unrest to “tighten the screws” by employing police-state tactics up to and including “martial law”—for that will render this country ungovernable, too, inasmuch as “martial law” is not a form of government permissible under the Declaration of Independence and the Constitution. The only sure and certain way to avoid both of these mutually undesirable alternatives is to revitalize the Militia, thereby returning to “the good People” the ability, together with the absolute legal authority, to protect themselves. See my book By Tyranny Out of Necessity: The Bastardy of “Martial Law” (Ashland, Ohio: Bookmasters, Inc., Revised & Expanded Second Edition, 2014, 2016), especially at 531-676.
After all, as America’s sovereigns WE THE PEOPLE are “the government”—both as its source and as its ultimate executors, as well as its beneficiaries. Public officials can do nothing—at least legitimately—without THE PEOPLE’S approval and coöperation, both passive and active. So if (as the White House’s post opines) “keep[ing] the innocent safe” is “the first duty of government”, then it is the first duty of THE PEOPLE themselves—who, having the greatest incentive to remain safe, will surely be most assiduous in fulfilling it. And because “keep[ing] the innocent safe” is obviously a defining characteristic of what the Second Amendment calls “the security of a free State”, then the revitalization of “well regulated Militia”—composed of THE PEOPLE themselves—is “necessary” to that end.
7. President Trump must also take into account that the open neo-Bolshevist “color revolution” is not the only, or even the most dangerous, subversive force deployed against his Administration, as well as against himself personally. He must also reckon with what students of these matters denote as “the Deep State”—namely, the clandestine rogue apparatus lodged within the bowels of the “military-industrial” and especially the “national-security” complexes, which considers itself the real “state within the state”, ruling over this country as a law unto itself alone. See, e.g., Paul Craig Roberts, “The Trump Presidency: RIP”, Paul Craig Roberts Institute for Political Economy (16 February 2017); and my commentary “An Ominous Start” (1 January 2017) at <edwinvieira.com>, pages 6-7.
In the long run, it does not much matter whether the Deep State is proceeding independently along the same lines as the neo-Bolsheviks, or whether it is loosely allied with them, or whether it is a full partner in their operations, or even whether it is actually in control of the whole shebang—for the immediate goal of both the Deep State and the neo-Bolsheviks is the same: to wit, the utter destruction both of the Trump Administration and of Mr. Trump himself, with their ultimate purpose being the defeat of WE THE PEOPLE’S reassertion of constitutional authority over this country. (Although, as Mark Twain quipped, history does not repeat itself, it often rhymes, the closest historical couplet in this case being, of course, the tacit alliance between the “left-fascist” Stalin and the “right-fascist” Hitler, through which the German Communist Rotenfrontkämpferbund effectively colluded with its supposed opponent, the Nazi Sturmabteilung, to overthrow the social-democratic Weimar Republic and set the stage for the Second World War. See, e.g., Viktor Suvorov, The Chief Culprit: Stalin’s Grand Design to Start World War II [Annapolis, Maryland: Naval Institute Press, 2013]).
Whatever the relationship between the fascistic “right” of the Deep State and the equally fascistic “left” of American neo-Bolshevism may be, the Deep State has already revealed its own hand, in spades, in the recent “Flynn-flammery” it has apparently imposed on President Trump. See, e.g., Richard Pollock, “EXCLUSIVE: How The Nation’s Spooks Played The Game ‘Kill Mike Flynn’”, The Daily Caller (15 February 2017); Jay Syrmopoulos, “Open Warfare Declared In DC As Deep State ‘Goes Nuclear’–Trump ‘Will Die In Jail’”, The Freethoughtproject (15 February 2017); Pepe Escobar, “The Swamp Strikes Back”, Offguardian (16 February 2017); and Joachim Hagopian, “Reasons Why Michael Flynn Was Fatality #1 in the Trump Presidency”, LewRockwell.com (17 February 2017).1 The only adequate response to this dire threat is for President Trump to bring to bear against the Deep State the full power of constitutional “law enforcement”, and sweep all of the renegades out of the “military-industrial” and “national-security” complexes with an iron broom. Compare 18 U.S.C. §§ 2383 through 2385 (the emergent problem) with 10 U.S.C. §§ 332 and 333 (a necessary part of the solution).
8. In the final analysis, if the Trump Administration intends to “stand[ ] up for our law enforcement community” in the fullest constitutional sense of that promise, it must first recognize of whom “our law enforcement community” actually consists—namely, WE THE PEOPLE themselves—and then realize that “standing up” for that “community” demands the revitalization of those constitutional institutions in which WE THE PEOPLE personally participate, to the point of exercising actual day-to-day decision and direction. If President Trump does nothing else during his tenure in office, he must leave America with the permanent legacy of “well regulated Militia” in every one of the several States, able to “execute the Laws of the Union” in “the actual Service of the United States” against all enemies, whether foreign interlopers or (especially) domestic subversives. And he must begin to do so immediately. For his—and America’s—enemies will not afford him the luxury of being able to “play for time”. Today is his time. Tomorrow will be too late. Procrastination was apparently President Kennedy’s undoing. See, e.g., JFK and the Unspeakable. Why He Died and Why It Matters (Maryknoll, New York: Orbis Books, 2008; reprinted, New York, New York: Touchstone, 2010). President Trump would be well advised to take that lesson to heart.
. Some supporters of President Trump have floated the alternative explanation that Flynn’s resignation was actually part of the normal course of events within the Administration. See “Dr. Steve Pieczenik Says Michael Flynn Was Purposefully Removed, The Left Are Intellectual Frustrated Children”, iBankCoin (16 February 2017). This thesis is exceedingly difficult to credit, however. For it would have been both unnecessary and highly counterproductive for the Administration to subscribe to a narrative based on Flynn’s telephonic indiscretion and later dishonesty in describing his behavior, together with allegations of “leaks” by person or persons unknown inside but hostile to the Administration, when a simple press-release stating that Flynn had resigned to make way for a better-qualified replacement would have sufficed—without providing the big “mainstream media” with additional ammunition for their on-going barrage that President Trump is a crony, a stooge, a dupe, or otherwise an “asset” of Russian President Vladimir Putin.
© 2017 Edwin Vieira, Jr. - All Rights Reserved
Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School).
For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment.
He has written numerous monographs and articles in scholarly journals, and lectured throughout the county. His most recent work on money and banking is the two-volume Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (2002), the most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective. www.piecesofeight.us
He is also the co-author (under a nom de plume) of the political novel CRA$HMAKER: A Federal Affaire (2000), a not-so-fictional story of an engineered crash of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com
His latest books:
To Dethrone the Imperial Judiciary"
2- and Constitutional "Homeland Security," Volume One, The Nation in Arms...
3- Tyranny Out of Necessity: The Bastardy of Martial Law
4- Three Rights
5- Thitreen Words
6- The Sword and Sovereignty: The Constitutional Principles of “the Militia of the Several States” (Constitutional Homeland Security)
He can be reached at his new
52 Stonegate Court
Front Royal, VA 22630.