Convention of States v Nullification: What Did Madison Say?

Radio host and Constitutional Lawyer Mark Levin stirred the hairy hornet’s nest with his book The Liberty Amendments in which he suggests a discussion of Article V of the U.S. Constitution and proposes some issues to get the conversation going. This is not a Constitutional Convention which is the purview of Congress but a Convention of the States. In early December 100 state legislators from 32 states met in Mount Vernon, Virginia to discuss bypassing Congress via Article V of the U.S. Constitution. The motivations are the three throughly corrupt branches of our unconstitutional government, Legislative, Executive and Judicial, all of which have participated in the murder of checks and balances on power to be used against the people. The Constitution of States allows for amendments to amendments and added amendments. Please note the Heritage Foundation opinion at the end.

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While there is much to discuss, I am not an expert on either process. I’m hoping we don’t have significant battlefield losses on both sides, rendering us impotent to birth a fresh return to the Framer’s plan. The people must take charge and restore a broken America. How do we do it? Below are some sources and quotes. 

For the Constitutional Convention argument, besides reading Levin’s book and numerous other writings, the first item below is a transcript of a discussion between Rob Natelson, a Senior Fellow in Constitutional Jurisprudence at the Independence Institute and interviewer Tim Baldwin from Liberty Defense League that also includes opinions on nullification. View the video at Queen of Liberty. 

TIM BALDWIN: Let me ask you first of all, Rob, why do you think we need to consider Article V of the Constitution to fix political problems today?

ROB NATELSON: There’s widespread understanding that the system is broken and that the Founders said one way to cure that is to pass constitutional amendments to change the rules that Congress is operating in, or the lack of rules, but Congress is not going to propose an amendment to discipline itself, so the founders built in this alternative method where the states can propose amendments for ratification, and that’s what we’ll be talking about.

BALDWIN: You’ve heard a lot of people in your experience as constitutional scholar and speaker about the fear that an Article V can, as they say, runaway. If you can briefly summarize why you think that premise is wrong

NATELSON: It’s wrong because it misunderstands the role of the convention and the rules covering the convention. There is a long history of court decisions that we have on the issue of Article V and the amendments process, and one things those courts decisions make clear is that an Article V Convention has to operate according to the rules of the Constitution and according to historical customs. Historical customs and rules of the Constitution simply don’t allow that kind of runaway.

BALDWIN: You’ve probably also heard people say, ‘well the Congress and the U.S. Supreme Court and the President, they don’t really follow the Supreme Court anyway so why should we try to amend it to fix our problems?

NATELSON: It’s a good question but fortunately the Constitution gives us the reason for being optimistic. Amendments generally have a pretty good shelf life in the Constitution, in fact Amendments are sometimes better enforced than the Constitution is.

The First Amendment, for example, passed over 200 years ago is still an important force in protecting individual liberty. More recent Amendments also, generally, have been abided by. An Amendment is a great political moment, political statement by the people as to what they want. As an historical matter, generally, they are honored.

BALDWIN: Some people will say the United States Supreme Court is just going to try and reinterpret any sort of Amendment, to favor Congressional power. How would you respond to that to ensure them that a Constitutional Amendment would actually limit federal power?

NATELSON: You never know completely what the court is going to do but the chances are that the court is going to enforce the Amendment to limit Congressional. The reason for that is, an Amendment is a powerful statement by the American people of the direction they want their government to take. It’s no secret that over the long haul, the Supreme Court, while it doesn’t completely follow the election returns, generally tends to bend toward them. When the people make that kind of firm statement, it would be very unlikely that the Court would simply say to the people, ‘we don’t care what you want, we’re going to do whatever we want. History doesn’t suggest that this would happen in that kind of case.

BALDWIN: Thomas Jefferson suggested back before the Constitution was ratified that we actually have a Constitution that required an Amendment Convention every generation or about every 20 years. Would you say that is a wise provision, and if not why.

NATELSON: Well, Jefferson said we could use a little rebellion every 20 years or so because he believed the government needed to be shaken up from time to time. I’m more of a Madisonian than a Jeffersonian. What Madison said is that before we start any little rebellion we need to use the Constitution’s mechanisms and he pointed out that the ultimate Constitutional mechanism for reigning in an abusive federal government is the application and convention process of Article V.

BALDWIN: Some people believe that rather than using Article V, all we have to do is use the nullification, state nullification, to reign-back federal power. How do you respond to someone who believes that?

NATELSON: “First, nullification is what we call and “extra constitutional remedy,” that is to say it is not really under the Constitution.” You have an obligation as a society to try the Constitutional remedies before you try the extra Constitutional remedies.

The other problem is one of sheer practicality. The Federal government turns out thousands of laws a year, perhaps tens of thousands of regulations a year. In order for the states to nullify any significant number of those, enough to make a difference, the state legislatures would have to be in session constantly doing nothing but nullifying federal regulations, so we are a lot better off, I think, if we change the constitution, and make a large correction at one time rather than trying to make a lot of little, smaller corrections.

BALDWIN: If a nullification is passed, how can the state enforce that and if they could enforce it, where does it lead?

NATELSON: That’s why historically, nullification has had mixed results. It doesn’t really work that effectively. The most famous example is when South Carolina tried to nullify a tariff and Andrew Jackson essentially got authorization from Congress to send out the troops.

If you push it to the ultimate, it can lead to civil war.

Now it is true under the theory of our Constitution, under the theory of our government, revolution is the ultimate right that people have, but as Madison pointed out, there is an obligation first to use the Constitutional methods before you start going to the methods that are outside the constitution.

BALDWIN: Let’s presume that a convention were held in the states to amend the Constitution, and there was in fact, a run away, that is, they go outside the scope of what the state’s wanted in their applications for an amendment. Do you think that that runaway convention, if accepted by a certain number of states would ultimately lead to a split-up of the union.

NATELSON: I don’t think it would get that far Tim. In the extremely unlikely event that a convention were called, let’s say for a balanced budget amendment and instead they sought to propose a term-limits amendment, the next step would be Congress. Congress has to choose a mode of radification. Congress would be quite within its rights, within it’s duty, to say, you know, this is not a properly proposed amendment. We are not going to propose a method of ratification.

If Congress did, nevertheless, propose a method of ratification, you would probably be inundated with lawsuits to stop it. The courts are, like Congress, institutional rivals of the Convention and so they would be likely to take the position that a Convention that exceeded its powers, could not come up with a valid proposal and that ultimately the states would have to approve anything the convention did.

We’re talking a very difficult burden of 38 states, including both houses of most state legislatures in order to ratify this. And then after that, the possibility of lawsuits.

There are far, far more protections against a runaway convention than there are against a runaway congress. A runaway congress is our problem right now.

BALDWIN: Do you think it wise that states try to use Article V, if nothing else than for the express purpose of getting the US Supreme Court to start ruling on some of the issues that surround Article V?

NATELSON: It’s possible, but not likely, but most people don’t want lawsuits for the sake of lawsuits. There is a myth out there Tim, that the courts don’t take Article V cases. In fact, the courts, the U.S. Supreme Court have ruled on Article V many times, so they are there as a way of protecting the process. They have made it clear that the rules of the process are governed by history and custom, but I don’t one should necessarily start an Article V proceeding purely for the sake of generating litigation.

BALDWIN: I have a couple more questions, Rob. One is the Article V provision has never been used by the states or never been called by Congress for a state convention. Why do you think the states have not been successful in getting Congress to call an Article V Convention?

NATELSON: Let’s make clear here, Article V has been used many times. What is true is that the system, whereby a Convention of the States proposes an amendment has never been used to completion and that is because they have never gotten the requisite 2/3rds of the legislatures to apply on any one subject.

You ask why. That’s a large topic and it really depends on a number of different things. All but two of the necessary states had applied for an amendment shifting the election of senators from the state legislatures to the people, back at the turn of the 20th century and the only reason that didn’t go to Convention is that Congress finally caved and agreed to report the amendment itself.

Similarly, when a number of states started putting in applications to demand term limits for the president, the Congress caved and agreed to report the amendment itself.

In some other cases, the reasons have been different. A big amendment application campaign in the 1960s was brought to a grinding halt, in part because it’s spiritual father, the minority leader in the US Senate Everett Dirksen died and was no longer able to carry it on.

And then more recently, the Balanced Budget amendment failed in part because Congress looked like it was going to be getting its house in order in the 80s and 90s and also because of, many people had the mistaken fear that this was a dangerous device to use.

BALDWIN: Rob, what would you say to posterity as to why now we should be considering and discussing Article V for their generation and even for their posterities generation.

NATELSON: Imagine the situation where James Madison and John Dickenson walk into this room and we start telling them about problems with our Federal government – how it hasn’t balanced its budget but only five times in 50 years and how abusive it’s become, they would no doubt ask, ‘have you used the convention procedure we gave you, Article V to deal with this kind of crisis. And when we admitted we had not, they would tell us, it’s our own fault then. This whole mess is our own fault.

When we look to future generations, we don’t’ want future generations saying to us, our generation lost the Republic, and we lost the Republic because it was our own fault. We want to be able to pass on to our own children, the same gifts of freedom and a strong America that were bequeathed to us.

Online searches reveal various degrees of enthusiasm for nullification. Levin makes the case that nullification will not work and supports that opinion with this:

Moreover, unlike Article V, which was expressly proposed, crafted, and adopted at the Constitutional Convention, and ratified as part of the Constitution at the state ratification conventions,nullification was not.  The word nullification doesn’t even appear in Madison’s notes of the Convention’s proceedings and, of course, in the Constitution itself.  Article V is obviously part of the Constitution.  I didn’t invent it.  But I do endorse it. Source: Mark Levin, Facebook

The Tenth Amendment Center takes up the James Madison-Nullification matter, and those claiming that  Madison “rejected nullification” and say he did “no such thing.” Madison’s letter of reply to Mr. “Everett” in August 1830 responds to the question of nullification. It can be read here. Levin refers to the same letter. A portion the Tenth Amendment Center uses for justification is this:

This brings us to the expedient lately advanced, which claims for a single state a right to appeal against an exercise of power by the government of the United States decided by the state to be unconstitutional, to the parties to the constitutional compact; the decision of the state to have the effect of nullifying the act of the government of the United States, unless the decision of the state be reversed by three-fourths of the parties.

The distinguished names and high authorities which appear to have asserted and given a practical scope to this doctrine, entitle it to a respect which it might be difficult otherwise to feel for it.

If the doctrine were to be understood as requiring the three-fourths of the states to sustain, instead of that proportion to reverse the decision of the appealing state, the decision to be without effect during the appeal, it would be sufficient to remark, that this extra-constitutional course might well give way to that marked out by the Constitution, which authorizes two-thirds of the states to institute and three-fourths to effectuate an amendment of the Constitution, establishing a permanent rule of the highest authority, in place of an irregular precedent of construction only.

But it is understood that the nullifying doctrine imports that the decision of the state is to be presumed valid, and that it overrules the law of the United States, unless overruled by three-fourths of the states.

My reading of the above comes to the conclusion that a fair number of “high authorities” at that time lent some credence to it, and so Madison addressed it reluctantly, but is affirming that three-fourths of all states must agree to uphold (sustain) the nullification or…three fourths of the states must overrule whatever it is that the lone state is trying to say is unconstitutional. A single state cannot nullify a federal law. That’s my take. What’s yours?

Then a few days later the Tenth Amendment Center named Mark Levin and his issue with Madison approving of nullification and refers to Madison’s “Notes on Nullification” published in 1834,” as edited by Gaillard Hunt who seems to be sanctioned by the Constitution Society (for whatever authority it holds). Virginia.edu also recommends Hunt’s works.

A snippet:

The forbidding aspect of a naked creed, according to which a process instituted by a single State is to terminate in the ascendancy of a minority of 7, over a majority of 17, has led its partizans to disguise its deformity under the position that a single State may rightfully resist an unconstitutional and tyrannical law of the U. S., keeping out of view the essential distinction between a constitutional right and the natural and universal right of resisting intolerable oppression. But the true question is whether a single state has a constitutional right to annul or suspend the operation of a law of the U. S. within its limits, the State remaining a member of the Union, and admitting the Constitution to be in force.

Madison then refers to the Alien and Sedition Act which was believed to be unconstitutional and which soon expired under Thomas Jefferson, however, in the event of such a violation of constitutional government were to occur, Madison said:

The true question therefore is whether there be a constitutional right in a single state to nullify a law of the U.S. We have seen the absurdity of such a claim in its naked and suicidal form. Let us turn to it as modified by S. C., into a right in every State to resist within itself, the execution of a Federal law deemed by it to be unconstitutional; and to demand a Convention of the States to decide the question of constitutionality, the annulment of the law to continue in the mean time, and to be permanent, unless ¾ of the states concur in over-ruling the annulment.

Thus, during the temporary nullification of the law, the results would be the same from those proceeding from an unqualified nullification, and the result of a convention might be, that 7 out of the 24 states, might make the temporary results permanent. It follows, that any State which could obtain the concurrence of six others, might abrogate any law of the U. S constructively whatever, and give to the Constitution any shape they please, in opposition to the construction and will of the other seventeen, each of the 17 having an equal right & authority with each of the 7. Every feature in the Constitution, might thus be successively changed;…

As to ‘natural right:’

It remains however for the nullifying expositors to specify the right & mode of interposition which the resolution meant to assign to the States individually. They cannot say it was a natural right to resist intolerable oppression; for that was a right not less admitted by all than the collective right of the States as parties to the Const. the nondenial of which was urged as a proof that it could not be meant by the Resoln.

They cannot say that the right meant was a Constitl. right to resist the constitutional authy. for that is a construction in terms, as much as a legal right to resist a law.

They can find no middle ground, between a natural and a constitutional right, on which a right of nullifying interposition can be placed; and it is curious to observe the awkwardness of the attempt, by the most ingenious advocates [Upshur and Berrian].

The Tenth Amendment Center referred to South Carolina’s effort to nullify the Alien and Sedition Acts as a “bastardization” of nullification and Madison seems to take that position and concludes the right thing was done without nullification.

Lastly, it may be remarked that the concurring measures of the states, without any nullifying interposition whatever did attain the contemplated object; a triumph over the obnoxious acts, and an apparent abandonment of them for ever.

Madison points to the right of state legislatures to originate amendments and speaks of how the forming of new states or parts of states is handled and says:

In all such cases, a communication among them results from the object which is common to them.

To end, finally, The Heritage Foundation has come out against a Convention of States and warns “Don’t Be Fooled by Article V Conventions.”  There seems to be good company on both sides but the last paragraph rather made my skin crawl:

There may be a time in extremis when an Article V convention is our last option to try to preserve the Constitution.   That’s how Madison at the height of the Nullification Crisis and later Lincoln in the midst of secession and the Civil War looked at it.  But just when there seems to be a national awakening to reestablish constitutional principles, American politics at the state and national level is moving in the right direction and a decisive election is on the horizon—that dark time is not now.

“American politics at the … national level is moving in the right direction….” Really? And “this time” isn’t dark enough? Following that logic, maybe Mr. Matthew Spalding, Ph.D can tell me how many seats we will take in the Senate and assure me that those will be enough to do what must be done, and consider this, there is no way the Constitution will be amended before the November 2014 election.

Okay. Eyes glazing over. I’d love to hear your thoughts on this important subject.

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  • Geo

    That Heritage statement is really concerning. Perhaps they are gazing into their crystal ball and seeing something in the future. But I’m not so confident about what they are seeing or predicting.

    The schism between republican vs democrat in my opinion hasn’t been a wider or deeper as it is today. Perhaps during Vietnam but the divide today is far more reaching across so many issues, I believe we are at our all time low.

    Within that party and political divide there is a huge splintering going on within the republican party itself. Real conservatives/constitutionalists {i.e. Tea Party members} are now engaged with the party elitist a civil war. The divide deepens with each and every day that passes and I believe will reach a apex when the conservatives are once again and perhaps for the final time betrayed with the upcoming immigration proposal that they repubics hell bent on pulling off.

    We have more than 90 million Americans who have dropped out of the work force, frustrated in not being able to secure a job. Our foreign policy with this administration is in taters. The middle east and northern Africa are in flames and just may ignite the next World War, thanks to this administration and their incompetence. The noble sacrifices made by our Military in Iraq and soon in Afghanistan will all be futile by the time these idiots are done. The NSA has been spying on and collecting all sorts of data on the American people and have sworn in testimony that they haven’t been. The IRS is being used a political retribution device against anyone who has stood up and spoken out against this administration. Our Military has been used as fodder in the political aspirations of the party elitist. We are told to believe that the unemployment rate is hovering around 7.0%, when in effect it’s almost double that and in some circles it’s triple that figure. The enrollments in Food Stamps and other social dependency is at records highs. Americans Health Care System is being dismantled and destroyed right before our very eyes, all while we are being told “not to worry”.

    Then as if all of the above isn’t enough. . . .We are now being told by the elitists in both parties is what we really need to get things started it to legalize some 15 million “illegals”. It’s the shot in the arm we all need and after all it’s the right thing to do.

    Am I missing something? I have news for the party elitist in the republican party. We have come to expect this kind of betrayal from the democrat party for years now, not from you. If you insist on going down this road by increasing our debt with no resistance, to continue to allow this President to act lawlessly and “rule” by Executive Fiat and to wave your magic wands and legitimize those who are “illegal”, no matter where they come from. I’ve got news for you, the future. . .especially yours is not so bright. We will not stand by and allow you to systematically destroy our Country by surrendering and becoming the democrat party light.

    I STAND WITH MARK LEVIN!

    • GEO, today as I posted on the hiring of Accenture to fix the O-Care website and learned that the DOJ prosecuted them for defrauding the US and Accenture is paying $63.7 M to resolve the issue, I was so unbelievably angry. That is nothing as important as whey you have layed out, but it all piles on and Accenture was chosen for a reason, and a devious one I’m sure. It’s out and out betrayal, every day more betrayal.

      I also believe immigration will happen and all the talk of the small bills, passed one at a time with border security first, are fiction. A story designed to keep the phones from ringing, although I know there are in those in the House who do not want this.

      Thanks for your opinion on Levin’s stance. I am dismayed at the hatred toward him. Where would we be today without the talk of an Article V, which also spurred the talk of Nullification. He wanted to get the discussion underway and he did that.

      I’ve spent a lot of time (and wear and tear on my eye sight) trying to read the Founder’s work on both and haven’t read nearly enough, so I was curious to see others were thinking.

      I STAND WITH YOU AND YOUR ASSESSMENT OF THESE DARK DAYS. We must do something and do it right.

  • Blasater

    I think there is no choice but to use some nullification but use it sparingly, such as for Obamacare or DHS militarizing LEO’s. I think of nullification like a Judicial stay. There simply is not enough time left to go through the Convention of the States process for dire abuses of the Federal Government.

    In parallel however, Article 5, should be pursued as quickly as possible and Levin’s Liberty amendments is the blueprint. If we can get those amendments passed, then nullification would no longer be necessary.

    We must do this though. With electronic voting and no voter ID laws we know the ruling elites are compromising the franchise. We can not effect change at the ballot box. And even if the voting system were in tact, the three branches of government, plus bureaucracy wont listen.

    I stand with Levin! (Even though I slightly disagree on Nullification)

    • Blasater, thank you for commenting. As you can tell from my article, I’m about where you are, but let me ask a question. On FB I’m being told that a state can nullify a federal law, and that’s it. It’s done.

      That’s not what I read in Madison’s writings. Do you have an opinion on that?

      If a single state can nullify one of these roiling issues then nullification works well. If it cannot, and if as I read, it must have 3/4ths of the states to agree for the nullification to work, as I believe Madison is saying, then a Constitutional Convention will be the quickest way and as you say, it must happen quickly. There is no reason it cannot happen quickly. Congress cannot stop it.

      Some of the greatest minds in American have been mulling over these problems for a long time now, and language to stop the tyranny cannot be that difficult. Plainly said, full understood is what we need.

  • bobmontgomery

    If Natelson is one of the leading proponents of this, then there are problems. Parse his statements. He says the system is broken and the Founders proposed a Convention to fix it. Correct me if I’m wrong, but didn’t the Founders propose abolishing the system when it no longer works?
    Further, while he says everybody agrees the system is broken, he later talks about how wonderfully the Amendments are working, how long they last and how everybody abides by them. Well, Rob, is everything just ducky or not?
    The system is broken because of all the people who violate their oath of office.
    We need law and order.

    • Bob, I noticed that too, but it was the only discussion I could find other than those we’ve been hearing for a few weeks now.

      As to abolishing the government, I understand we can overthrow it, but I don’t think that’s going to happen.

      We indeed need law and order.

  • mysterian

    With the statement “But the true question is whether a single state has a constitutional right to annul or suspend the operation of a law of the U. S. within its limits, the State remaining a member of the Union, and admitting the Constitution to be in force,” Madison specifically allows for secession.

    bobmontgomery – it was a different set of founders. The revolutionaries would have already acted by now.

    and finally, no a state can’t nullify a federal law and remain in the union as Madison says.

    • mysterian, there is also the question of the “compact.” Is there a compact of states? Madison spoke of the “object which is common to them.” Courts, including SCOTUS has said the compact is the people, not the states. There are several opinions on this but Daniel Webster’s was the most interesting to me and I’m sure there are many more. Madison said all communications, the “object” of the communications in the matters of amendment or nullfication should be “that which is common to them.”

      I’m not sure I can agree that it was a “different set of founders.” I can agree there were additional founders in the mix. Only about 4 years had passed since the end of the war and the actual creation of the US Constitution with another year passing for ratification. Most of the members of the Continental Congress participated in the Constitutional Convention. I believe there were only about 4 original signers of the Dec. of Independence and the Constitution. I would have to look that up to be certain.

      Thanks very much for joining in the conversation. We must find ways to talk and to do something. There have been times when the states binding together and making a lot of noise was powerful enough to force Congress to act rather than leave it up a convention. With this Congress I tend to think we would see martial law rather than the will of the people.

      • mysterian

        IMO, the original compact was of the states, not the people, as it was ratified by the states. It was Lincoln that slipped the leash the states had the fed under and in so doing played the same role that Marius had played in Rome.

        • mysterian, Interesting. It certainly seems it originated as a states’s compact. I’ll look into the Lincoln aspect. Thanks for taking the time to answer back.

  • I stand with Mark Levin. I cannot type the response I would really like to because of severe spinal pain and I just cannot sit or do much else for long.

    I believe from my reading, Madison was correct.

    The Heritage Foundation is not the organization you think it is and in the last couple of years, they have tipped their hand as being what I call ‘establishment conservatives’. The last paragraph is deeply troubling and the dark, lowest of times for this once fine REPUBLIC are now and still getting darker, period. I have little faith in the upcoming elections because of voter fraud, the current regime and liberals will do anything to stay in power. They want to legalize another 15 plus million illegal alien invaders and so called ‘conservatives, RINOS are moving in lock step with the regressive progressives who are ruining our country. There is little difference anymore.
    They want to take away my right and your to keep and bear arms, freedom of speech and so much more. Bit by bit, the gov’t is doing all these things.

    We need law and order for sure but I personally think it will take a second revolution and it very well may involve violence and blood. I pray for this not to happen and for legal citizens to wake up and do so quickly! I would rather have trouble in our time, my time than there be trouble for our children. Our kids already will be enslaved worse than we were. I am not advocating for another revolution but if this is what we must do, if this is what must be done to restore this country and true AMERICAN EXCEPTIONALISM, count me in. At least my kids will know their father went down as free as he could, even if it just the ground I stand on.

    The Founding Fathers did a damn fine job and our Constitution is NOT out of date nor does it need to be changed, perverted by foreign, international laws. It will take a new set of revolutionaries and whether this can be done via peaceful means or not, I do not think so but hope it can be avoided.

    • PatriotUSA, so sorry to hear that your pain still persists. I really appreciate your comments and your opinions. I agree about Heritage. I’ve watched it and believe they have been sold to Karl Rove, or Rove is their major stockholder 🙂 As I said, the paragraph you mentioned gave me the chills.

      Had we not had the corrupt interference of the courts…had Congress been doing it’s job to protect the Constitution, we would not have been in the courts throughout the years and we certainly would not have the illegal alien problem we have today. But that didn’t happen and now we must act.

      I am encouraged by the delegate meeting in early December. It is possible to do this without violence unless the firmly-seated marxists move another way. In my opinion, there are only two reasons for a “revolution”: 1) Article V fails and/or 2) the other side starts the violence.

      Again, thanks for taking the time to comment. I believe I remember that your pain has been with you a long time. I hope 2014 will bring better circumstances for you. God bless.

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  • Arius

    Mark Levin’s proposal for a Convention of the States is, I think, the last chance we have to restore the American Republic, otherwise, the American welfare/warfare State will continue as Empire and end as all other empires: downfall and collapse.