Skip to comments.Judge Abel Upshur's pamphlets on Nullification
Posted on 12/01/2012 6:59:13 AM PST by ProgressingAmerica
The Tenth Amendment Center has a great article which highlights the necessary road back to Liberty. Many Americans are understandably frustrated with Obama's re-election, but dissolving the union in order to defy Obama is not only a bad choice, it's an unnecessary one. We haven't exhausted all of our options yet. The sad thing is, that due to the state of progressive education in our country, Americans aren't taught about their constitutional powers. This is actually by design, considering that progressives view the government school system as a vehicle for change.
In 1833, Judge Abel P. Upshur wrote a series of six pamphlets titled "An Exposition of the Virginia Resolutions of 1798", and in them he makes it very clear the importance of keeping the Union together. You can read five of these pamphlets here(1, 3-6) and the second pamphlet is here on page 70. Here's some of what he says:
In the first place, a State which withdraws from the Union breaks the Union. This is true, ex vi termini, and therefore, need not be proved. But I have already shown the Resolutions of 1798, proceed upon the idea, that the Union is to be preserved; and indeed, that is the main object of resistance, as therein contemplated. In this respect, therefore, secession is not a means of resistance within those resolutions.
In the second place, the resistance therein contemplated, must be such as will "arrest the progress of evil." Will you be so obliging to tell me, sir, how a usurped power can be resisted, by giving way to it? In one way, indeed, the evil may be arrested by secession; the usurped power may be rendered nugatory, by withdrawing from its reach, all the subjects upon which it can exercise itself. I can scarcely imagine, however, that this tame and submissive idea, was entertained by the statesmen of 1798. It appears to my humble understanding, that secession, so far from being a form of resistance to usurped power, is the precise reverse; it is neither more nor less than a running away from the oppressor. And so far from "arresting the progress of evil," it encourages and invites the evil, by removing all restraint from the wrong-doer. In this view, therefore, it is not within the resolutions of 1798.
The Tenth Amendment Center goes into greater detail surrounding some of the history of these pamphlets in this article.
Seems to me that secession is a means of swapping one corruptible group for another. After all, people in both north and south were persecuted for supporting the other side.
So how does nullification work?
Is it declared, and by whom?
Has it ever been done?
And FWIW it sounds good to me.
As a Prosecutor, I would, from time to time, run across jury nullification. Rare, but it happened, typically in marijuana cases. Some of my friends at DOJ said they would see it in tax cases.
This might help you out.
Susan Brenner, THE VOICE OF THE COMMUNITY: A CASE FOR GRAND JURY INDEPENDENCE:
Finally, federal grand juries subservience to prosecutors was exacerbated when the federal system eliminated the use of presentments, which allowed a grand jury to bring charges on its own initiative. (N35) Now, federal grand jurors cannot return charges in the form of an indictment without a prosecutors consent. (N36) Elimination of the presentment demonstrates the historical trend towards elimination of proactive features in the grand jury system.
Did Brenner fall for the lie or did she cleverly further it when she said, [T]he federal system eliminated the use of presentments?
The federal system did no such thing. Note 4 said the use of presentments was obsolete. First of all, Note 4 is not a law in itself. It is a Note to a law, and the law as written, does not have anything to say about presentments. You see the leap Brenner has made? The Constitution provides for presentments, then the FRCP are enacted and the Rules therein do not mention presentments, nor due they ban presentments, and if they did, such a ban would be unconstitutional, since an administrative enactment regarding procedure can not overrule the Constitution.
Regardless, its irrelevant, since the FRCP does not mention presentments. Note 4 simply states that presentments allowed for in the 5th Amendment of the Constitution have become obsolete, or outmoded, which is not to say that they were eliminated. Shame on you Susan Brenner. You know damn well that the Constitution can only be changed by an official Amendment to it. Nothing can be eliminated from the Constitution by an administrative note.
The use of presentments had become obsolete because the grand jurors were not aware of their power. So the use of presentments became more and more rare, and then in 1946 the legislative branch seized upon the moment to make this power disappear by waving its magic wand over the Constitution.
Mr. Root got it wrong in the Creighton Law Review as well:
Before the Federal Rules of Criminal Procedure which made independently-acting grand juries illegal for all practical purposes grand juries were understood to have broad powers to operate at direct odds with both judges and prosecutors
The FRCP did not make it illegal for all practical purposes.
Thats patently false. I dont know if Mr. Root, and/or Susan Brenner, were acting as the magicians assistant, but I cant imagine how these educated scholars could be so incredibly ignorant of basic Constitutional law. Give me a damn break.
But if enough people repeat the lie, the lie appears to be the truth.
But we have it on good authority, the Supreme Court, that the lie has no legal effect.
Justice Powell, in United States v. Calandra, 414 U.S. 338, 343 (1974), stated:
The institution of the grand jury is deeply rooted in Anglo-American history. [n3] In England, the grand jury [p343] served for centuries both as a body of accusers sworn to discover and present for trial persons suspected of criminal wrongdoing and as a protector of citizens against arbitrary and oppressive governmental action. In this country, the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by a presentment or indictment of a Grand Jury. Cf. Costello v. United States, 350 U.S. 359, 361-362 (1956). The grand jurys historic functions survive to this day. Its responsibilities continue to include both the determination whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions. Branzburg v. Hayes, 408 U.S. 665, 686-687 (1972).
The Note 4 lie is smashed on the altar of the U.S. Supreme Court, The grand jurys historic functions survive to this day. Take that Note 4!
Antonin Scalia effectively codified the unique independent power of the Fourth Branch into the hands of all citizens sitting as federal grand jurors. In discussing that power and unique independence granted to the grand jury, the United States Supreme Court, in United States v. Williams, 504 U.S. 36 at 48 (1992), Justice Scalia, delivering the opinion of the court, laid down the law of the land:
[R]ooted in long centuries of Anglo-American history, Hannah v. Larche, 363 U.S. 420, 490 (1960) (Frankfurter, J., concurring in result), the grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It `is a constitutional fixture in its own right. United States v. Chanen, 549 F.2d 1306, 1312 (CA9 1977) (quoting Nixon v. Sirica, 159 U.S. App. D.C. 58, 70, n. 54, 487 F.2d 700, 712, n. 54 (1973)), cert. denied, 434 U.S. 825 (1977).
I submit to you that this passage sets the stage for a revolutionary knew context necessary and Constitutionally mandated to we the people, THE FOURTH BRANCH of the Government of the United States. Besides, the Legislative, Executive, and Judicial branches, I submit that there is a fourth branch, THE GRAND JURY, and we the people when sitting as grand jurors, are, as Scalia quoted in US v. Williams, a constitutional fixture in its own right. Yes, damn it. That is exactly what the grand jury is, and what it was always intended to be.
Scalia also stated, that the grand jury is an institution separate from the courts, over whose functioning the courts do not preside Id.
And finally, to seal the deal, Scalia hammered the point home:
In fact, the whole theory of its function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people. See Stirone v. United States, 361 U.S. 212, 218 (1960); Hale v. Henkel, 201 U.S. 43, 61 (1906); G. Edwards, The Grand Jury 28-32 (1906). Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arms length. Judges direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office. See United States v. Calandra, 414 U.S. 338, 343 (1974); Fed.Rule Crim.Proc. 6(a). [504 U.S. 36, 48]
I’ve served on two juries, one of which was a courts martial. The civilian case involved burglary.
Recently, I was booted from the jury pool of a third case. It was against a teenage boy who was 17 years old when he banged a girl just a couple months short of 16 years old. The judge asked prospective jurors to raise their hands if they had a problem with deciding guilt according to the law, which of course meant statutory rape.
Without thinking, I raised my hand. I regret having done so.
Great article. Thanks.