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Thursday, May 05, 2011

SALLY MORRIS: TENTH AMENDMENT HERO - SHERIFF MACK COMES TO GRAND FORKS

The Valley Tea Party Conservative Coalition invited all 53 country sheriffs of North Dakota to be their guests at a breakfast with former Arizona Sheriff Richard Mack in Grand Forks, on Saturday, April 2.  It was expected that many would not be able to attend due to distance and other circumstances.  But it seemed odd that not one sheriff accepted the invitation.  Privately, one confided that when he received his, he had sought counsel from a county attorney!  And was “warned off”!  (This begs the question, just what calibre of men are we electing to highly responsible public office, who seek counsel before they hear fact and opinion?)


Too bad.  Because Sheriff Richard Mack’s career and experiences offer profound lessons for us all and his message about American freedom and the infrastructure of Federalism upon which it rests is of immediate concern to every American citizen.  Those who attended the public rally met a decent, humble, God-fearing gentleman who sees the law enforcement profession in a somewhat different light – as a bulwark protecting citizens from attack on our God-given rights from both criminals and “well-intentioned” but unConstitutional federal government programs and agencies.


Mack is no “armchair” theorist.  He has lived his life in the arena of public service.  Always an achiever, he had played the “numbers game” when it came to writing tickets.  He was determined, as a young police officer, to out-perform the rest of his department, and so he did.  Until one day, about to serve a ticket to a driver, he took stock of his work, his “mission”, and just what this view of police work was doing to his community and the people he was supposed to be serving.  He didn’t like what he saw.  He suddenly realized that his public service had been a “lie” and that he had been a “hypocrite”.  From that day on he began to study the Constitution he had sworn an oath to the people to protect and defend.  He found it plain, simple and understandable.  “It was beautiful,” he said.
Henceforth he would become a “Constitutional” cop.  He would protect people’s freedom from all comers.  He recognized the thought and effort that went into drafting this revolutionary document which set forth the people’s right to govern themselves, that enshrined the sovereignty of the people themselves, rather than set forth the terms of their subjugation.  He began to think of the Americans who had given their lives that we might all be free and he said, “I repent those tickets now.”  But he did more.  He began to comprehend the importance of the county sheriff in the scheme and design of a constitutional republic.  Simply stated, he tells us that  “the county sheriff is our nation’s last line of defense, for the preservation and return to, fundamental and individual liberty.”

Richard Mack ran for and was elected Sheriff of Graham County, a sparsely populated corner of southeastern Arizona, in 1988.  It was his “dream job” and all was well until one day, at an annual meeting of county sheriffs, some BATF agents walked in and distributed a 12-page document, informing them that these were the sheriffs’ “marching orders”.  They spelled out the recently enacted Brady Bill, the well-known gun control legislation signed into law by President Clinton, and how the sheriffs were to implement it.  The sheriffs were advised that failure to comply with the provisions of the bill would or could result in their arrest.  Every sheriff present was furious.  There was a mountain of new regulation and administration required with no funding, and worse, it conflicted with Americans’ right, under our Constitution, to bear arms.

By the time Mack reached home that night he had decided that he could not enforce the provisions of the Brady Bill and yet remain loyal to the oath he had taken to the American people to protect and defend our Constitution.  The only option he could see was to sue the Clinton Administration, a prospect which left him overwhelmed.  It also promised to be an expensive and hazardous path. Not being a member, but having no money to pursue such a plan he contacted the NRA’s legal office.  They agreed to assist with legal expertise and to work with Mack’s own attorney.  But – and this is significant for all of us today – Mack’s case was not going to be founded on the Second Amendment.  It was framed as a Tenth Amendment case.  The implications herein are monumentally important.  To summarize, Mack’s case was won at the federal district court level, with Judge John Roll issuing a strong opinion upholding the sovereignty of the several states in matters not enumerated in the Constitution. He held that the provisions of the Brady Bill demanded that Mack either violate his solemn oath of office or risk sanctions and that this could not be tolerated under the Constitution.

The case was appealed in the 9th Circuit and the original court reversed, but upon a hearing by the Supreme Court, Mack’s position was forcefully vindicated, with Justice Scalia writing the majority opinion.  He cited the Court’s finding in New York vs. United States, 505 U.S. 144 (1992):  “We have held, however, that state legislatures are not subject to federal direction,” and, “The Federal Government may not compel the States to enact or administer a federal regulatory program.”

It is obvious why this case and this man, Richard Mack, are so important to us today.  In its casting on the basis of the Tenth Amendment, the Supreme Court’s ruling covers a far wider range of issues.  It covers the EPA, which has been a threat to the economic health of many businesses; it covers property rights and control of a state’s geographical features; it covers our air and water; IT COVERS OBAMACARE.

And further, this case puts in clear focus the role of the local, state and county officers in curtailing these incursions into areas which are legally off-limits to federal authority.  Scalia wrote:  “Residual state sovereignty was also implicit, of course, in the Constitution’s conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, Art.I Sec. 8, which implication was rendered express by the Tenth Amendment’s assertion 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.’”

Scalia correctly viewed the separation of powers between federal and state/local authority as one of the Constitution’s structural protections of liberty.  Incidentally, Justice Stevens wrote a dissenting opinion, basically calling for the impressment of local and state officials to do the bidding of federal agencies, while leaving it entirely up to Congress to determine what is “best” for us:
   
    “. . . If Congress believes that such a statute will benefit the people of the Nation, and serve the interests of cooperative federalism better than an enlarged federal bureaucracy, we should respect both its policy judgment and its appraisal of its constitutional power.”

Scalia answered thusly:  “To say that the Federal Government cannot control the State, but can control all of its officers, is to say nothing of significance.  Indeed, it merits the description ‘empty formalistic reasoning of the highest order.’ . . . By resorting to this, the dissent not so much distinguishes New York as disembowels it.”
If there is anyone anywhere in American government who does not believe this case is of historic importance to everyone living here today, he is far behind the times.  Which brings us back to the matter of our North Dakota county sheriffs and the irresolute resort of those who sought legal advice before even hearing the story of Sheriff Mack.  Had a sheriff been present who questioned the above, he could have sought clarification or challenged Mack’s premise.  The palpable fear here recalls those town hall meetings a season or two ago, when some of our former legislators ducked their constituents, assembled to seek information and voice opinion.  If it was fear of an uprising right there at the Hilton, they were in a good position to call out the deputies to guard them.  But deputies cannot guard them against thoughts, so perhaps this is why they stayed away.  It does call our attention to the need to follow more closely our county elections in future, learn a great deal more about the men and women who seek the office of sheriff.   It would be worthwhile for each of us to contact our own sheriff and ask whether he is aware of Sheriff Mack and the significance of his case – and how he feels about his role as protector of the Constitution.

And lastly, it would be well if Attorney General Wayne Stenehjem were to look this up.  Justice Scalia wrote in this opinion, “The Federal Government . . . may not compel states to enact or administer a federal regulatory program.” New York vs. U.S. 505, U.S. 144 (1992), and “the separation of the two spheres is one of the constitution’s structural protections of liberty.  ‘Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch . . .’ Hence a double security arises to the rights of the people.  The different governments will control each other, at the same time that each will be controlled by itself. (The Federalist No. 51, at 323.)”  Stenejhem might want to reappraise his views on North Dakota’s rights with respect to Obamacare.

Richard Mack notes that the county sheriff is the ONLY elected law enforcement officer we have.  His boss is the people, he should seek to serve the people, not federal agencies.  Sheriff Mack is more than a successful plaintiff.  He is a Constitutional hero.  He travels throughout the United States educating law enforcement personnel and the citizenry about the rights and responsibilities of government in a constitutional republic.  Should the opportunity come your way to hear him speak DO NOT FAIL to listen!  If you are not fortunate enough to meet him in person, read one of his several books and visit his website: http://www.sheriffmack.com.



Sally Morris is a member of Americans for Constitutional Government and of the Executive Committee of the Valley Tea Party Conservative Coalition.

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