HB1236

HB1236 passed the House 79 to 18 (breaking largely along party lines). The purpose of HB1236 was to assert the authority of the Oklahoma Legislature, under the 10th Amendment to the United States Constitution, to reserve to itself those powers not delegated to the United States by the Constitution, nor prohibited by it to the States. This assertion is and of a right ought to be completely uncontroversial, as such reservation is explicitly codified in the 10th Amendment. This assertion furthermore has become imperative given the recent usurpation of legislative power by the executive at the federal level, and by the unprecedented proliferation of “orders” and “mandates” arrogated completely outside proper government authority by every federal, state, and local agency with an obscure office. It is vital to the preservation of our constitutional republic that the state legislatures bring this lawless practice to heel by reasserting their proper, sole legislative powers; and your Oklahoma House of Representatives overwhelmingly passed HB1236 to do just that.

Once in the Senate, a series of amendments substantially removed all the relevant language, removed the codification of new law, removed the essential role of the state legislature, and merely added a slight additional duty to the office of the attorney general, with no oversight at all by the legislature. In other words, the Oklahoma Senate removed the central purpose and effect of the House bill.

The reasoning stated by the Senate leadership is wholly unsatisfactory. The basic premise given is that a state legislature asserting the 10th Amendment is itself “unconstitutional.” This manifestly is absurd, as the 10th Amendment explicitly reserves all powers not delegated to the United States! It reserves such undelegated powers to the States respectively, or to the people; NOT to the judiciary, federal or otherwise! This is neither difficult nor obscure. This is central to the idea of a constitutionally limited republic of states.

It is my observation that such protests of unconstitutionality proceed from a specious reliance on case law as effectively superior to the Constitution itself. This view can be summarily disproved by a merely cursory examination of Article V of the Constitution. The power to amend the Constitution rests exclusively with the legislative branch of the United States, and with the legislative branches of the several states. No mention of the judiciary appears in any capacity whatsoever in Article V. The practical effect of this is that case law may never ALTER the United States Constitution.

The philosophy that case law can modify statute law proceeds from the common-law doctrine of stare decesis (“let the decision stand”): the doctrine that a court is bound by previous decisions in similar circumstances; the doctrine of precedent. The object is to provide consistent application of laws from case to case, and as such is a sound legal principle. The problem in Constitutional law arises from a misapplication of stare decisis to ALTER the actual text by court decision. Under the United States Constitution this is impermissible, for several essential reasons.

The Constitution of the United States is that which forms and defines and, most importantly, limits the federal government. It is the sine qua non of the United States Government: without which the United States government does not exist. Article IV is explicit that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Judges thereby are explicitly SUBJECT to, INFERIOR to, SUBSERVIENT to, the actual text of the Constitution. Article III defines the very narrow powers assigned to the Supreme Court and any inferior courts established by Congress. Nowhere in Article III is power given to the Supreme Court to ALTER the Constitution. The power to ALTER the Constitution, as discussed previously, in Article V rests exclusively with the LEGISLATIVE branch, and the legislatures of the several states. Not in any capacity whatsoever does the Judicial branch have any role whatsoever in amending the Constitution.

Thus the doctrine of stare decisis CANNOT be used to ALTER the Constitution! Thus any decision by any court, including the Supreme Court, CANNOT be cited to, in this discussion, reduce or limit the protections given in the Bill of Rights. Thus any previous decision that purports to do so CANNOT be binding on subsequent decisions, as the court, inferior to the Constitution, simply has not the power to alter the Constitution. A subsequent court manifestly cannot be bound by a previous or superior decision that falls outside the power of the court as granted by the Constitution. This is not difficult nor obscure. Leftist courts and “progressive” politicians merely WISH that it should be so, and therefore proceed as though it is so, so long as we the people of the United States do not prevent them.

And that brings us full circle to the matter at hand. Your Oklahoma House of Representatives overwhelmingly passed HB1236 expressly to assert the power of the state legislature (and therefore of the Oklahoma people they represent) to reserve those powers NOT granted by the Constitution to the States respectively, and to the people. It is that simple. Your Oklahoma Senate, meanwhile, refuses to do just that! I urge you to contact your Oklahoma senators to urge them to do what the state legislature ought to do: represent the interests of Oklahoma citizens with respect to the United States government; to insist that the United States government remain within its Constitutional limits with respect to the people of Oklahoma; to insist on the reservation of all other powers to the State of Oklahoma as required by the Tenth Amendment. The very survival of our constitutional republic is at stake.

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