81R11845 MMS-F
By: Berman H.C.R. No. 76
CONCURRENT RESOLUTION
WHEREAS, The Constitution of the State of Texas declares that
Texas is a free and independent State, subject only to the
Constitution of the United States, and the maintenance of our free
institutions and the perpetuity of the Union depend upon the
preservation of the right of local self-government, unimpaired to
all the States; and
WHEREAS, The State of Texas acknowledges that the Ninth
Amendment to the U.S. Constitution states that "[t]he enumeration
in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people," and that the Tenth
Amendment states that "[t]he 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"; and
WHEREAS, The 50 states composing the United States of America
are not united on the principle of unlimited submission to their
general government but by a compact, described as "a Constitution
for the United States of America," with amendments thereto, through
which they constituted a general government for special purposes
and delegated to that government certain definite powers,
reserving, each state to itself, the residuary mass of rights to its
own self-government; whensoever the general government assumes
undelegated powers, its acts are unauthoritative, void, and of no
force; to this compact each state acceded as a state, and is an
integral party, its co-states forming, as to itself, the other
party; 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; as in all other cases of a
compact among powers having no common judge, each party has an equal
right to judge for itself, as well of infractions as of the mode and
measure of redress; and
WHEREAS, The Constitution of the United States delegated to
Congress a power to punish treason, counterfeiting the securities
and current coin of the United States, piracies, felonies committed
on the high seas, offences against the law of nations, slavery, and
no other crimes whatsoever; it being true as a general principle,
and one of the amendments to the Constitution having also declared,
that "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," therefore all acts of
Congress that undertake to create, define, or punish crimes, other
than those so enumerated in the Constitution, are altogether void
and of no force; the power to create, define, and punish such other
crimes is reserved, and of right appertains, solely and exclusively
to the respective states, each within its own territory; and
WHEREAS, It is true as a general principle, and is also
expressly declared by one of the amendments to the Constitution,
that "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"; no power over the
freedom of religion, freedom of speech, or freedom of the press
being delegated to the United States by the Constitution, nor
prohibited by it to the states, all lawful powers respecting the
same did of right remain with, and were reserved to, the states or
the people; thus was manifested their determination to retain to
themselves the right of judging how far the licentiousness of
speech and of the press may be abridged without lessening their
useful freedom, and how far those abuses that cannot be separated
from their use should be tolerated, rather than the use be
destroyed; thus also they guarded against all abridgment by the
United States of the freedom of religious opinions and exercises,
and retained to themselves the right of protecting the same; in
addition to this general principle and express declaration, another
and more special provision has been made by one of the amendments to
the Constitution, which expressly declares that "Congress shall
make no law respecting an establishment of religion, or prohibiting
the free exercise thereof, or abridging the freedom of speech or of
the press," thereby guarding in the same sentence, and under the
same words, the freedom of religion, of speech, and of the press,
insomuch that whatever violates either, throws down the sanctuary
that covers the others, and that libels, falsehood, and defamation,
equally with heresy and false religion, are withheld from the
cognizance of federal tribunals; therefore, all acts of the
Congress of the United States which do abridge the freedom of
religion, freedom of speech, and freedom of the press are not law,
but are altogether void and of no force; and
WHEREAS, The construction applied by the general government,
as is evidenced by sundry of its proceedings, to those parts of the
Constitution of the United States that delegate to Congress a power
"to lay and collect taxes, duties, imports, and excises, to pay the
debts, and provide for the common defense and general welfare of the
United States," and "to make all laws which shall be necessary and
proper for carrying into execution the powers vested by the
Constitution in the government of the United States, or in any
department or officer thereof," goes to the destruction of all
limits prescribed to its power by the Constitution; words meant by
the instrument to be subsidiary only to the execution of limited
powers ought not to be so construed as themselves to give unlimited
powers, nor a part to be so taken as to destroy the whole residue of
that instrument; the proceedings of the general government under
color of these articles will be a fit and necessary subject of
revisal and correction; now, therefore, be it
RESOLVED, That the 81st Legislature of the State of Texas
hereby request the lieutenant governor and speaker of the house of
representatives to appoint a joint committee that shall have as its
charge to communicate this resolution to the legislatures of the
several states and to assure them: that this state continues to
esteem their friendship and union; that it considers union, for
specified national purposes, and particularly those specified in
their federal compact, to be friendly to the peace, happiness, and
prosperity of all the states; that being faithful to that compact,
according to the plain intent and meaning in which it was understood
and acceded to by the several parties, it is sincerely anxious for
its preservation; that it does also believe that to take from the
states all the powers of self-government and transfer them to a
general and consolidated government, without regard to the special
delegations and reservations solemnly agreed to in that compact, is
not for the peace, happiness, or prosperity of these states, and
that therefore this state is determined, as it doubts not its
co-states are, to submit to undelegated, and consequently
unlimited, powers in no man or body of men on earth; that in cases of
an abuse of the delegated powers, the members of the general
government, being chosen by the people, a change by the people would
be the constitutional remedy, but where powers are assumed that
have not been delegated, a nullification of the act is the rightful
remedy; that every state has a natural right, in cases not within
the compact (casus non foederis), to nullify of its own authority
all assumptions of power by others within its limits; that without
this right, the states would be under the dominion, absolute and
unlimited, of whosoever might exercise this right of judgment for
them; that nevertheless, this state, from motives of regard and
respect for its co-states, has wished to communicate with them on
the subject; that with them alone it is proper to communicate, they
alone being parties to the compact, and solely authorized to judge
in the last resort of the powers exercised under it, Congress being
not a party, but merely the creature of the compact, and subject as
to its assumptions of power to the final judgment of those by whom,
and for whose use itself and its powers were all created and
modified; that if the acts before specified should stand, these
conclusions would flow from them: that it would be a dangerous
delusion were a confidence in the men of our choice to silence our
fears for the safety of our rights; that confidence is everywhere
the parent of despotism--free government is founded in jealousy,
and not in confidence; it is jealousy and not confidence that
prescribes limited constitutions, to bind down those whom we are
obliged to trust with power; that our Constitution has accordingly
fixed the limits to which, and no further, our confidence may go; in
questions of power, then, let no more be heard of confidence in man,
but bind him down from mischief by the chains of the Constitution;
and, be it further
RESOLVED, That this state therefore call on its co-states for
an expression of their sentiments on acts not authorized by the
federal compact; and it doubts not: that their sense will be so
announced as to prove their attachment unaltered to limited
government, whether general or particular; that the rights and
liberties of their co-states will be exposed to no dangers by
remaining embarked in a common bottom with their own; that they will
concur with this state in considering acts as so palpably against
the Constitution as to amount to an undisguised declaration that
that compact is not meant to be the measure of the powers of the
general government, but that it will proceed in the exercise over
these states, of all powers whatsoever; that they will view this as
seizing the rights of the states, and consolidating them in the
hands of the general government, with a power assumed to bind the
states, not merely as in the cases made federal (casus foederis),
but in all cases whatsoever, by laws made, not with their consent,
but by others against their consent; that this would be to surrender
the form of government we have chosen, and live under one deriving
its powers from its own will, and not from our authority; and that
the co-states, recurring to their natural right in cases not made
federal, will concur in declaring these acts void and of no force,
and that each will take measures of its own for providing that
neither these acts, nor any others of the general government not
plainly and intentionally authorized by the Constitution, shall be
exercised within its territory; and, be it further
RESOLVED, That the joint committee be authorized to
communicate by writing or personal conference, at any time or place
whatever, with any person or persons who may be appointed by any one
or more co-states to correspond or confer with it, and that it
submit a complete report of its proceedings to the 82nd Texas
Legislature when it convenes in January 2011; and, be it further
RESOLVED, That any act by the Congress of the United States,
executive order of the president of the United States of America, or
judicial order by the judicatories of the United States of America
that assumes a power not delegated to the government of the United
States of America by the Constitution for the United States of
America and that serves to diminish the liberty of any of the
several states will be considered null and void by the State of
Texas; acts that would make a federal mandate null and void include,
but are not limited to:
I. Establishing martial law or a state of emergency within
one of the states comprising the United States of America without
the consent of the legislature of that state;
II. Requiring involuntary servitude, or governmental
service other than a draft during a declared war, or pursuant to, or
as an alternative to, incarceration after due process of law;
III. Requiring involuntary servitude or governmental
service of persons under the age of 18, other than pursuant to, or
as an alternative to, incarceration after due process of law;
IV. Surrendering any power delegated or not delegated to any
corporation or foreign government;
V. Any act regarding religion; placing further limitations
on freedom of political speech or further limitations on freedom of
the press;
VI. Further infringing on the right to keep and bear arms,
including prohibiting type or quantity of arms or ammunition; and,
be it further
RESOLVED, That the Texas secretary of state forward official
copies of this resolution to the president of the United States, to
the speaker of the house of representatives and the president of the
senate of the United States Congress, to all the members of the
Texas delegation to Congress with the request that this resolution
be officially entered in the Congressional Record as a memorial to
the Congress of the United States of America, and to the presiding
officers of each state's legislature.