My name is Scott Strzelczyk and I am a Maryland citizen and resident of Carroll County. My testimony today is in support of House Bill 558 – The Liberty Preservation Act of 2013.
This issue is not a Democrat or Republican issue. It is not a conservative or liberal issue. It is not a right or left issue. It’s a wholly American issue just as mom and apple pie.
Throughout the history of our Union, States have interposed and nullified federal laws and acts that are not made in pursuance of the federal Constitution.
When Congress passed the Sedition Act making it a crime to criticize the federal government, and President John Adams signed it into law in 1798, James Madison argued that “in case of a deliberate, palpable, and dangerous exercise of other powers” not delegated by the Constitution, the States “have the right, and are duty bound, to interpose for arresting the progress of the evil”.
In Federalist 28, Alexander Hamilton wrote, “it was an axiom of the American system of government that the state governments will in all possible contingencies afford complete security against invasions of the public liberty by national authority.”
Likewise Thomas Jefferson wrote, “The several states comprising the United States of America are not united on the principles of unlimited submission to the general government.” Jefferson also wrote in the Kentucky Resolution of 1798, “that whensoever the General government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each state acceded as a state, and is an integral party, its co-states forming, as to itself, the other party: 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; but that as in all other cases of compact amongst parties having no common judge; each party has an equal right to judge for itself, as well of infractions as of the mode and measures of redress.”
Jefferson along with the entire founding generation was mostly concerned with their rights as Englishmen. Due process was not established under the Constitution. Due process was not a novel idea in the 1700s nor is it novel today. The English have a long and distinguished history dating back to the Magna Carta signed at Runnymeade in 1215. The concept of due process was established in the Magna Carta. Chapters 39 and 40 of the Magna Carta state:
39. No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed–nor will we go upon or send upon him–save by the lawful judgment of his peers or by the law of the land.
40. To none will we sell, to none deny or delay, right or justice.
These rights enshrined in the Magna Carta are part of English Common Law. We know that Common Law was adopted as of July 4, 1776 and is codified in the Maryland Declaration of Rights, Section 5a, subsection 1. The American Revolution should remind us that sovereignty is left in the hands of the people, and if the federal government should exceed its constitutional authority, abridge or deny our unalienable rights, the people and the States are duty bound to resist any and all arbitrary power and oppression.
The Constitution of the United States forbids the federal government from denying due process rights to any person for any reason. The 5th amendment reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Today, you have the opportunity to stand proudly among some of the greatest state legislators in the history of the Republic. In the 1850s, northern state Senators and Representatives stood up for the due process rights of their black citizens and passed Personal Liberty Laws, blocking implementation of the Fugitive Slave Act of 1850.
This act counts among the most evil pieces of legislation in American history. The Fugitive Slave Act of 1850 made a farce of due process, allowing for the arrest of a suspected runaway slave based on the word of the “property owner.” He simply had to swear an affidavit attesting to his “ownership” of the person in question, and he was allowed to drag that man or woman back South into slavery. The accused wasn’t even allowed to present evidence in his own defense. The act was meant to protect the “property” of slave holders, but many free blacks found themselves accused of escaping slavery and faced the prospect of living out their life on a plantation. And northerners understood that even an accused runaway should remain innocent until proven guilty, and enjoy basic due process rights.
Instead of simply submitting to federal authority and quietly participating in constitutionally dubious and morally repugnant fugitive-slave roundups, northern lawmakers aggressively resisted the fugitive slave acts. Officials in these states did everything within their power to thwart enforcement, including denying federal agents the use of jails, and even impeaching state officials who lent support to fugitive-slave claimants. The Michigan legislature passed a law guaranteeing habeas corpus rights and a jury trial to any accused runaway, all in defiance of federal “law.”
Would you comply with the Fugitive Slave Law or would you resist it, and interpose on behalf of your citizens?
This week marked the 71st anniversary of Franklin Roosevelt’s signing of Executive Order 9066. The order authorized the Secretary of War and the U.S. Army to create military zones “from which any or all persons may be excluded.” The order left who might be excluded to the military’s discretion. Roughly 120,000 Japanese Americans were rounded up and sent to internment camps. Of those 62% were American citizens. Roughly 11,000 German Americans and 3,000 Italian Americans were also rounded up.
Recently, Washington State Senator Bob Hasegawa shared his emotional and traumatic story of how his parents, grandparents, aunts, and uncles were detained and spent three years living behind barbed wire and armed guards at the Minidoka Internment Camp in Idaho. They were all U.S. citizens and they were all denied due process. They were detained solely for being of Japanese descent.
In 1976, President Gerald Ford rescinded E.O. 9066 and said, “I call upon the American people to affirm with me this American Promise – that we have learned from the tragedy of that long-ago experience forever to treasure liberty and justice for each individual American, and resolve that this kind of action shall never again be repeated.”
Certain sections of the National Defense Authorization Act empower the federal government to indefinitely detain citizens without due process, without being charged with a crime, and without a trial by jury.
How are these parts of the NDAA any different than the Fugitive Slave Act of 1850? How are these parts of the NDAA any different than the Executive Order President Roosevelt signed?
In nothing more than a stroke of the pen, a thousand years – a millennium – of due process rights are obliterated. You either believe in due process for all persons or you do not. It is unjust and discriminatory for legislators, executives, or the judiciary to deny due process rights to any person.
It is up to each and every one of you, at this moment in American history and the history of the State of Maryland, to leave your mark in defense of every persons’ right to due process, and to do precisely what James Madison said, “you have the right and are duty bound to interpose for arresting the progress of evil.”