Bill Text: WV HCR72 | 2024 | Regular Session | Introduced
Bill Title: Affirming the sovereign right of the State of West Virginia to nullify un-Constitutional acts
Spectrum: Partisan Bill (Republican 6-0)
Status: (Introduced) 2024-02-08 - To House Judiciary [HCR72 Detail]
Download: West_Virginia-2024-HCR72-Introduced.html
HOUSE CONCURRENT RESOLUTION 72
(By Delegates Ridenour, Kirby, C. Pritt, Ward, Phillips, and Foster)
[Introduced February 8, 2024; Referred to the Committee on the Judiciary then Rules.]
Whereas, the Constitution of West Virginia in Article I "Relations to the Government of the United States" states "The government of the United States is a government of enumerated powers, and all powers not delegated to it, nor inhibited to the States, are reserved to the States or to the people thereof. Among the powers so reserved to the States is the exclusive regulation of their own internal government and police; and it is the high and solemn duty of the several departments of government, created by this Constitution, to guard and protect the people of this State from all encroachments upon the rights so reserved"; and
Whereas, Article II, Section 2, Powers of Government in Citizens states "The powers of government reside in all the citizens of the State, and can be rightfully exercised only in accordance with their will and appointment;" and
Whereas, Article III "Bill of Rights" states "All men are, by nature, equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely: The enjoyment of life and liberty, with the means of acquiring and possessing property, and of pursuing and obtaining happiness and safety." And further states "All power is vested in, and consequently derived from, the people"; and
Whereas, Article III further states "Government is instituted for the common benefit, protection and security of the people, nation or community. Of all its various forms that is the best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and when any government shall be found inadequate or contrary to these purposes, a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter or abolish it in such manner as shall be judged most conducive to the public weal"; and
Whereas, Article III further states "No person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers"; and
Whereas, Thomas Jefferson specified in the Declaration of Independence "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"; and
Whereas, When "We the People of the United States" ordained and established the Constitution of the United States of America, the People and the States granted only specific, limited powers to the federal government, as enumerated in Section 8 of Article I of the Constitution of the United States; and
Whereas, Articles I, II, and III of the Constitution of the United States, respectively, exclusively vest specified legislative, executive, and judicial powers to the corresponding branches of government; and
Whereas, Article I Section 10 identifies those powers prohibited to the States and leaving all other powers not specified for the federal government to the States; and
Whereas, This horizontal separation of powers reflects the understanding the Founding Fathers derived from Natural Law that men could not be trusted to always be virtuous and public-minded; and
Whereas, The Founding Fathers did not want undue power to be combined in any branch of government where, if left unchecked, it could become tyrannical; and
Whereas, The Constitution of the United States does not permit Congress to delegate or confer any lawmaking power to any other branch of government; and
Whereas, James Madison, the Father of both the Constitution and the Bill of Rights, stated authoritatively in the Virginia Resolutions of 1798 "uniting legislative and judicial powers, to those of executive, subverts the general principles of free government, as well as the particular organization and positive provisions of the federal Constitution"; and
Whereas, James Madison, in the Virginia Report of 1799-1800, reinforced this stating "It is affirmed that such a union of powers subverts the particular organization and positive provisions of the Federal Constitution"; and
Whereas, No other person, agency, or department of any other branch of the federal government has any lawmaking power under the Constitution of the United States; and
Whereas, James Madison, in the Virginia Report of 1799-1800, affirmed that "the line which divides legislative power, from the other departments of power, all will agree, that the powers referred to these departments may be so general and undefined, as to be of a legislative, not of an executive or judicial nature; and may for that reason be unconstitutional. … If nothing more were required, in exercising a legislative trust, than a general conveyance of authority, without laying down any precise rules, by which the authority conveyed should be carried into effect; it would follow, that the whole power of legislation might be transferred by the legislature from itself, and proclamations might become substitutes for laws. A delegation of power in this latitude, would not be denied to be a union of the different powers"; and
Whereas, Article I, Section 7 of the Constitution of the United States establishes the only process by which a bill becomes a law; and
Whereas, This process requires passage by both houses of Congress followed by either presidential approval or congressional override of presidential veto; and
Whereas, Any action by the executive or judicial branches that purports to enact law or that is treated as such is a usurpation of power; and
Whereas, The courts of the United States usurped power at the outset of our Republic, initially with Supreme Court Chief Justice John Marshall’s decision in Marbury v. Madison, declaring an extra-Constitutional right of judicial review of and intervention in law-making; and
Whereas, The courts frequently make outrageously erroneous decisions, including Dred Scott v. Sandford, Korematsu v. United States, Plessy v. Ferguson, Roe v. Wade, Buck v. Bell, and Wickard v. Filburn; and
Whereas, Federal court opinions and executive orders are often erroneously interpreted as law or to have amended the Constitution of the United States; and
Whereas, James Madison in the Virginia Report of 1799-1800 stated "legislative powers are vested in the Congress, its executive powers in the President, and its judicial powers in a supreme and inferior tribunals. The union of any two of these powers, and still more of all three, in any one of these departments…must consequently subvert the constitutional organization of them;" and
Whereas, The principle of separation of powers is so innately representative of a republican form of government that it is upheld and reinforced in the Constitution of West Virginia through the establishment of three branches of state government; and
Whereas, When creating a federal government through ratification of the Constitution of the United States, the people and the states also designed a vertical separation of powers between the superior sovereign states and the inferior federal government; and
Whereas, During the debates over ratification of the Constitution, James Madison recognized in Federalist’s #39, #45 and, most forcefully in, #46 the inherent superiority of the state governments to any federal government created by the Constitution, and that the state governments would remain the principal governing bodies of the country, with the federal government being restricted, as specified by the Constitution, to "external objects, as war, peace, negotiation, and foreign commerce"; and
Whereas, A vertical separation of powers is articulated in the Constitution of the United States, granting to the federal government only limited, enumerated, lawmaking powers; and
Whereas, This vertical separation of powers is also incorporated into the Bill of Rights of the Constitution of the United States; and
Whereas, James Madison recognized in Federalist #39, and his other Federalist essays, the sovereignty of the several states declaring "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;" and "The senate…will derive its powers from the states, as political and co-equal societies;" and "the proposed government…leaves to the several states a residuary and inviolable sovereignty over all other objects;" and
Whereas, The First Amendment of the Constitution of the United States specifically denies Congress lawmaking power within certain listed fields; and
Whereas, The Ninth Amendment specifically prohibits the federal government from interfering with rights not otherwise expressly enumerated in the Constitution of the United States; and
Whereas, The Tenth Amendment states "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," thereby denying the federal government powers not delegated to it in the Constitution of the United States; and
Whereas, This vertical separation of powers is generally well known by the people and the states and was known and respected by the federal government for over one hundred years of our nation's history; and
Whereas, This principle has become increasingly disregarded in recent decades, with the federal government acting as if it were supreme in all areas and unlimited in its jurisdiction; and
Whereas, Whether this shift was intentional or accidental, active or passive, it nevertheless finds no support in the Constitution of the United States of America, the laws of the United States, or the constitutions of any of the sovereign states, and is an illegal usurpation of power and the unalienable rights of the people; and
Whereas, Any federal action that violates either the horizontal or vertical separation of powers is void, as the Constitution of the United States is the supreme law of the land; and
Whereas, The landmark Supreme Court case Marbury v. Madison declared that "a law repugnant to the Constitution is void"; and
Whereas, An act of Congress repugnant to the Constitution of the United States cannot become a law; and
Whereas, The provisions of the Constitution of the United States supersede all other laws; and
Whereas, In the 1879 decision, Ex parte Siebold, the Supreme Court ruled that "An un-Constitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment"; and
Whereas, In Norton v. Shelby County the Supreme Court stated that "An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed"; and
Whereas, In Miranda v. Arizona, the Supreme Court further opined that "Where rights secured by the Constitution are involved, there can be no rulemaking or legislation which would abrogate them"; and
Whereas, As Thomas Jefferson explained in the Kentucky Resolutions of 1798, that the several states created a compact that "constituted a General Government for special purposes, delegated to that Government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government"; and
Whereas, James Madison stated in Federalist #39 that "the constitution is to be founded on the assent and ratification of the people of America,…that this assent and ratification is to be given by the people, not as individuals composing one entire nation; but as composing the distinct and independent states to which they respectively belong. It is to be the assent and ratification of the several states derived from the supreme authority in each state, the authority of the people themselves. The act therefore establishing the constitution, will not be a national but a federal act" and "the act of the people as forming so many independent states, not as forming one aggregate nation is obvious" recognizing the states were the entity which formed this compact; and
Whereas, As Thomas Jefferson explained in the Kentucky Resolutions of 1798, "whensoever the General government assumes undelegated powers, its acts are unauthoritative, void, and of no force"; and
Whereas, Thomas Jefferson further added in the Kentucky Resolutions of 1798, "but where powers are assumed which have not been delegated a nullification of the act is a rightful remedy: that every state has a natural right, in cases not within the compact to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them "; and
Whereas, James Madison in the Virginia Resolutions of 1798 recognized that the states formed a compact, that the federal government had only very limited powers, and that the states retain the right to interpose themselves between the People and a tyrannical federal government and other dangers, unequivocally stating "in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states who are parties there-to have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them"; and
Whereas, The courts, to preserve their malicious usurpation of authorities not granted by the Constitution, have ruled that Thomas Jefferson’s and James Madison’s declaration of states’ natural rights to nullify un-Constitutional powers and actions was in itself un-Constitutional; and
Whereas, Thomas Jefferson in the Kentucky Resolutions of 1798 explained that a government created by other entities cannot define or determine its own powers, stating "that the Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers;" and
Whereas, In the Virginia Report of 1799-1800, James Madison recognized the same, stating "The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition"; and
Whereas, Chief Justice of the Supreme John Roberts stated in his opinion on National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) that care must be taken to "not undermine the status of the States as independent sovereigns in our federal system. That system "rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’ "; and stated further that "The States are separate and independent sovereigns. Sometimes they have to act like it"; and
Whereas, The Father of the Constitution and the Author of the Declaration were far more knowledgeable and enlightened regarding the foundation and construction of our most important Founding Documents than any other individuals of their time or subsequent; and
Whereas, No courts or justices since the ratification of the Constitution have any greater insight into the construction, connotation and meaning of our Founding Documents, and thereby must not maliciously interpret, contradict, or overturn any statements regarding the intent of our Founding Documents by these two pre-eminent Founding Fathers; and
Whereas, The Constitution of the United States binds federal lawmakers by oath to support the constitution, and when they fail to do so, the rightful remedy for states is to nullify their usurpations and to declare their acts void; and
Whereas, Every constitutional officeholder must know and understand these important constitutional limitations of power, and individually and collaboratively determine how best to defend the rights of the people and fulfill his or her oath of office; and
Whereas, The Constitution of the United States assures the people and the states that their respective rights and powers will be respected by the federal government; and
Whereas, These sacred rights shall not be infringed upon by any action of the federal government purporting to wield any undue authority.
Whereas, James Madison stated in Federalist #55 "I am unable to conceive that the state legislatures which must feel so many motives to watch, and which possess so many means of counteracting the federal legislature, would fail either to detect or to defeat a conspiracy of the latter against the liberties of their common constituents;" Therefore, be it
Resolved by the House of Delegates:
That the Legislature of West Virginia does hereby declare the sovereign right of West Virginia to nullify any dangerous and unconstitutional acts of, actions not undertaken using Constitutional means or actions taken to subvert Constitutional processes by the federal government; and, be it
Further resolved, That the Executive Branch of the State of West Virginia is charged with identifying and taking action to resolve those acts by the federal government requiring nullification, and work with other states to prevent the federal government from enforcing unconstitutional actions; and be it
Further resolved, That the Clerk of the House of Delegates forward copies of this resolution to the President and Secretary of the United States Senate, the Speaker and Clerk of the United States House of Representatives, and the members of the United States Senate and the United States House of Representatives of the State of West Virginia, the President of the United States, and the Chief Justice of the Supreme Court of the United States; and be it
Further resolved, That the Clerk of the House of Delegates forward copies of this resolution to the presiding officers of each of the legislative houses in the several States, inviting these other states to join West Virginia and Louisiana in nullifying and preventing unconstitutional actions.
