Did Governor Grisham Violate the Constitution?

In case you missed it, last week New Mexico Governor Michelle Lujan Grisham issued an executive order making it illegal for citizens to carry firearms in public–both open and concealed carry–for 30 days in Albuquerque and the surrounding county.

She called it a response to a “public health” emergency.

The “Constitutional conservatives” went nuts.

How dare she violate the 2nd Amendment!

In fact, a resident of Albuquerque quickly filed a lawsuit in federal court challenging the order.

Politicos on both the left and the right called the move unconstitutional, though a few openly admitted they knew it would eventually get thrown out in federal court. This was a matter of principle and an effort to stimulate conversation.

Grisham did indeed violate the Constitution.

But not the U.S. Constitution.

And her edict should never have been challenged in federal court.

Here’s why.

The 2nd Amendment folks don’t understand that the Bill of Rights as ratified only applied to the general or federal government, not the States.

Everyone knew this, even John Marshall who said as much in the majority opinion in Barron v. Baltimore in 1833.

This was the only thing Marshall ever got right.

Madison even proposed an “incorporation amendment” to Congress as part of the proposed Bill of Rights.

It was explicitly rejected.

Very few men in the founding generation wanted a federal negative of State law. John Rutledge said that alone would damn the Constitution in the 1787 Philadelphia Convention.

Every time it was proposed, it failed.

Marshall created one by “judicial review” in 1821, but it was not related to a Bill of Rights issue.

But the nationalists kept pressing,

In 1868, the Republicans illegally ratified the 14th Amendment.

Attempts to insist that it “incorporated” the Bill of Rights, meaning that the first nine amendments applied to the States, were rejected time and again, most explicitly by the Supreme Court in 1873 by a Republican controlled Supreme Court.

That all changed in the 20th century because of Hugo Black, the progressive jurist from Alabama.

Black made a great ahistorical discovery that the founding generation really wanted the Bill of Rights to apply to the States but never got their way.

Black rode to the rescue.

Over the next half century, the first eight amendments to the Constitution would be “incorporated” by the Supreme Court, history be damned.

This is why all of these “Constitutional conservatives” cried foul.

Yet, as Raoul Berger conclusively proved, the 14th Amendment was never designed to incorporate anything. This is a fabrication, and a dangerous one for those who supposedly believe in limited government.

If the States are mere administrative subdivisions of the general government, liberty is gone.

Now, Grisham’s decree is unconstitutional according to the New Mexico State Constitution.

It violates the State Bill of Rights according to the New Mexico Supreme Court.

Grisham correctly pointed out to her leftist colleagues that this was indeed a State rather than federal issue, but she omitted that she did not have the power to issue such an order, particularly when her legal justification was a fifty year old law made for public health emergencies like a viral pandemic.

This law is illegal and unconstitutional.

It would be great if American “conservatives” really believed in federalism. This whole thing could have been thrown out in New Mexico without appealing to our federal overlords.

I discuss the issue on Episode 876 of The Brion McClanahan Show.

Should We Forget Thomas Jefferson?

About a week ago, a listener sent me an article from National Review that encouraged its readers to declare their independence from Thomas Jefferson.

He was outraged and wanted my thoughts.

I could just call it stupid, but the article provides a teachable moment for Americans interested in anything that resembles the American tradition. We could call these people conservatives or paleo-libertarians. The traditional term “republican” would be best if it had not been hijacked by the Lincolnites.

The article’s author, Akhil Reed Amar, is one of the most prominent leftist progressive scholars in the United States.

Let that sink in for a moment. “Conservative” National Review published a piece on Thomas Jefferson from a dyed-in-the-wool progressive.

That should be exhibit one guadrillion that mainstream “conservatives” are no better than the leftist progressive they seem to despise.

The piece is loaded with typical leftist talking points about the beauty of democracy and equality (thank Harry Jaffa for “conservative” embrace of that concept) and free education. Those are the “positives” about Jefferson’s life according to Amar.

The negatives were laughable.

Jefferson should be forgotten because he favored nullification and secession. You read that correctly. This is straight out of the progressive playbook. These things are bad because…SLAVERY!

I wish conservatives and “conservative” publications weren’t this stupid, but they are.

Jefferson also had 50 kids with slaves and was a evil man because he never freed his slaves even though he spoke a great game.

If you’re shocked that this was published in National Review, don’t be.

The editorial board liked it, I’m sure, because Amar insisted that we shouldn’t dump all of the Founding Fathers.

Washington, Hamilton, Adams, and Franklin deserve our praise.

And then we should add Lincoln, Douglass, Stanton, and other great “second founders” to that list as well.

I’m not making this up.

The sad part? This could have been written by any West Coast Straussian or the dopes that produced the 1776 Commission Report for the Trump administration.

They say the same things.

South bad, North good. Lincoln GREAT!

You see, R.L. Dabney correctly pointed out in the late 19th century that modern (Northern) conservatism was little more than the discarded intellectual trash of the left.

National Review has long been intellectual trash, but this takes it to another level.

But understand that both the modern left and the modern right, particularly the establishment jerks, have the same heroes, worship the same Lincolnian “United State”, and believe that the root of all evil in America was, and still is, the South.

Their bogeymen are John C. Calhoun, Thomas Jefferson, Jefferson Davis (whom Amar cites in his idiotic polemic), and anyone who really believed in a real federal republic.

If only they could persuade all of those hicks below the Mason Dixon and their rebel flag waiving drones in the rest of the United States that they need re-education, a baptism in the Holy Water of the Lincoln Spirit, we would be saved.

Sherman, Sheridan, and Wilson tried a baptism by fire. They–both progressive leftists and progressive conservatives–are just angry it didn’t work.

I discuss Amar’s joke of an article on Episode 873 of The Brion McClanahan Show.

Should We Read the Federalist Papers?

The Federalist Papers are the most overrated series of essays in American history.

That’s not a hot take. It’s a fact.

They hold more weight because of the stature of the authors: Hamilton, Madison, and Jay.

But that doesn’t make them any more important or useful than other commentaries on the Constitution written at the same time.

In fact, they persuaded very few people and were rarely published outside of New York.

Washington wanted a copy, and because they were quickly published in book form, they found a receptive audience, but that was after the Constitution was ratified.

As Aaron Coleman points out in this excellent essay, they are a useful and important historical set of documents, but their contemporary significance and lofty stature as a work of “political philosophy” are questionable.

They have contributed in no small part to Madison’s stature as the “Father of the Constitution,” a misnomer in itself. John Dickinson, Roger Sherman, or even Gouverneur Morris could be included in that list.

Madison didn’t get the Constitution he wanted.

Hamilton never liked the document no matter how hard he pleaded for its ratification. John Lansing knew it and called him out as a liar. They almost went to pistols.

I am partial to Tench Coxe’s essays in favor of ratification along with those penned by Dickinson. James Wilson’s “State House Yard” speech was considered to be the most important in 1787 and 1788.

In other words, there is more to ratification than Hamilton and Madison.

And if you are looking for original American political philosophy, skip Madison and read Calhoun.

But Coleman’s essay made for great Podcast fodder. I cover it on Episode 869 of The Brion McClanahan Show.

Do We Have Two “American Foundings”?

The good news? Progressives admit we’ve won.

The bad news? Progressives have changed the game, the field, and the rules.

What do I mean by this?

You see, progressives have decided that our side was correct about the founding, the Constitution, federalism, secession, the nature of the Union. All of it.

But it doesn’t matter. Originalism–real originalism–is dead, and has been replaced by “14th Amendment Originalism.”

The original Constitution was overthrown during the second American revolution of 1868.

This isn’t new, of course. The progressive historians Charles and Mary Beard suggested that the United States underwent a revolution in 1861. Southerners said the same thing for years.

Progressives on both the left and the right, and that includes West Coast Straussians, have decided this is fantastic.

That old worn out Constitution was replaced by the Lincolnian revolutionaries and the 14th Amendment which gave us “equality” as a “conservative” principle.

When the left and the right are saying the same thing, like this Jamelle Bouie piece at the New York Times, what are the Lincolnians really conserving?

To Bouie and the “14th Amendment Originalists,” its the Lincolnian proposition nation, a position that Gary Wills said “revolutionized the Revolution.”

Even by that statement, Wills admits that Lincoln made up history in 1863, the same thing that the “proposition nation” people have been doing since the 18th century, for as Bouie points out, there were those that considered the first sentence of the second paragraph of the Declaration to be the most important statement in the document.

Not to virtually everyone in the real founding generation, which does not include some unknown abolitionists who decided to reinvent the meaning of the Declaration. Lump Lincoln into that group by the War.

What does this mean? If you start with Lincoln, you get 19th century leftistism, the same thing “conservatives” are now trying to “conserve.”

I discuss these issues on Episode 867 of The Brion McClanahn Show.

Throw the Bums Out with Nullification

Ain’t no better time for throwing the bums out than right now.

Unfortunately, it seems Americans have been saying that since 1783.

That was the point of the Republican Revolution of 1800 and every subsequent attempt to check the power of the general government.

Throw ’em out and things will be better.

But what if that doesn’t work? I know that’s a rhetorical question.

It never works.

We can all recall a few moments in American political history when things seemed to be going the “right” way.

How did that work out long term?

Bigger government, more foreign wars, more taxes, more spending, more corruption, more “progressive” destruction of traditional society.

It never works, and “voting better” is the very definition of insanity.

But States do have an ace up their sleeve, a tactic they could use any time that has always worked.


“I kid,” you say.


Think about it.

When colonial leaders used “nullification” against unjust and unconstitutional British taxes in 1765, what happened? The taxes were repealed.

When Jefferson and Madison invoked the “compact fact” of the Constitution in 1798 and both Kentucky and Virginia nullified the Alien and Sedition Acts, what happened? The Republicans swept to victory and either repealed or let the odious laws expire.

When South Carolina nullified the tariffs of 1828 and 1832, what happened? Congress reduced the tariffs.

When Northern States nullified the Fugitive Slave Law throughout the 1830s and 1840s, what happened? The Supreme Court sided with these States by ruling that States did not have to use State resources to enforce federal laws.

Nullification can take many forms. It can be non-compliance or the simple act of ignoring federal law, something several States currently have done with drug legalization.

And it works, all the time.

Throwing the bums out is great, but making them irrelevant is even better.

I talk about nullification on Episode 863 of The Brion McClanahan Show.

Is the United States Becoming a “Banana Republic”?

The latest Trump indictment led to another round of conservatives describing the United States as a “third world country” and a “banana republic.”

At the same time, Al Sharpton questioned whether Republicans wanted “George III or the confederacy” for their continued support of Trump.

American politics are historically stupid.

The Untied States isn’t in danger of becoming a “banana republic.” The analogy doesn’t work.

Nor is Donald Trump either King George III or Jefferson Davis.

He’s a 1940s New Deal Democrat.

More importantly, the best historical analogy for the modern United States is Imperial Rome.

The “republic” died a long time ago, killed by Abraham Lincoln and the Republican Party.

The Imperial United States will eventually meet the same fate as Imperial Rome.

The process has already started:

1. Unchecked political corruption at the highest levels with general ambivalence by the voting populace.

2. Government sponsored persecution of political opponents.

3. High inflation and a devalued currency.

4. A massive imperial army and wide ranging foreign policy commitments.

5. A hollowed out military with sagging “native” interest in recruitment.

6. Decadence and moral decline with a lack of public ethics.

7. A government that lacks accountability and hides behind “bread and games.”

8. Massive immigration and declining urban centers.

9. Tremendous government expenditures and payouts to government cronies and wealthy sycophants.

Sounds about right.

Rome did not fall apart overnight. It took centuries, just as the United States will continue a slow decline unless a major military or economic shock forces the issue.

Even then, the reaction won’t be a revitalization of the original federal republic and founding principles unless more is done to educate the general public.

That is a tedious process and continually undone by proposition nation mythologists on both the left and the right.

This is why “think locally and act locally” is so important.

One of my first episode of The Brion McClanahan Show focused on the parallels between Rome and the United States.

I thought it was as good time to revisit that argument.

I cover our current slow implosion on Episode 861 of The Brion McClanahan Show.

Why Does the Left Really Hate the New Florida History Standards?

The new Florida K-12 history standards have upset the left.

Kamala Harris recently suggested that teachers in Florida would be required to tell students that slavery benefited black Americans.

Various historians immediately whined to the establishment media that this was an effort to “revise” the past, to minimize the institution of slavery, and, hilariously, to support white guilt.

That last point illustrates how stupid these people can be. The entire point of victim history is to create white guilt. A curriculum that would ostensibly minimize the impact of the institution in America would reduce white guilt.

But that is not what the standard suggests. In fact, the standards merely force instructors to tell a more complex history of the past. How this is accomplished is ambiguous.

That’s the problem.

The left doesn’t want to give the one honest historian the room to talk about African participation in the institution, to explain the findings of Time on the Cross or Roll, Jordan, Roll, or to discuss someone like Horace King, the slave who learned engineering and later used that skill to make a lot of money in Alabama.

This doesn’t mean that you become a pro-slavery Northern theologian. But you would tell the whole story.

That might lead to fewer victims and a more reconciliationist American history.

In other words, Victim Inc. would be shut down and their path to power narrowed, if only slightly

Yet, the standards are still malleable enough to allow leftists to continue their Victim history of America.

They just can’t force everyone to do this.

And maybe, just maybe, real history has a chance.

I won’t hold my breath. It turns out Prager U will be providing some of the curriculum, you know, the same Prager U that had Ty “Robert E. Lee and Me” Seidule tell the history of the War.

With friends like these.

I discuss the reaction to the Florida standards on Episode 860 of The Brion McClanahan Show.

What Do Early American Politics Tell Us About Modern Politics?

In 2009, I wrote my Politically Incorrect Guide to the Founding Fathers as a way to bring attention to what I called the “greatest generation” of Americans.

This doesn’t mean that Americans had forgotten the founding generation. Hardly. They were being discussed all the time.

But I did have the sense that it was getting harder to talk about their accomplishments without bowing your head in remorse for racism and slavery.

Only a penitent man will pass.

I was right, and the crusade against everything traditionally Americans has only grown worse.

Efforts by the West Coast Straussians to attach Lincoln to the founding generation through the “proposition nation” are just as foolish, and in fact, make the right look even worse.

Which brings me to the opening question. What can we learn from early American politics?

We should not simplify the period. Anyone who has written on the topic–including yours truly–had been guilty of this oversight before. We want to make the period easier to understand and so we throw a wide net while ignoring the complexity of the period.

Simple labels do not work.

Which is why I decided to discuss this essay from Douglas Wilson on the founding period.

It was sent to me by one of my McClanahan Academy LIVE! students (this has become a great community, meaning you should hop on board for the next class this fall).

Wilson gets a lot of things right in his essay, but he makes some major mistakes by trying to oversimplify the founding period.

For example, Washington was a “nationalist” but that should not be confused with Daniel Webster nationalism or Andrew Jackson nationalism or Abraham Lincoln nationalism. He would have rejected all three.

He was never Jefferson’s political “adversary”, and while Washington admired the English political tradition, he believed the American political system was far superior to the British model.

It also seems that Wilson does not really understand an “unwritten constitution,” though again, this could just be an oversight in his effort to make the history more “understandable.”

He does correctly point out that we can learn a great deal from this period in American history, though I would also argue that the structural problems of the United States Constitution could be improved. The Confederate Constitution of 1861 did a nice job in that regard.

We should talk about the founding generation, but we should also get them right. That includes the indispensable man, George Washington.

Washington was a real “nationalist”, meaning he favored a union of States that benefited all and burden all equally. He opposed factions because he thought they undermined the general welfare of the whole, and he advocated republican virtue and the most important quality for American statesmen.

In other words, Washington favored a domestic policy that John C. Calhoun would have understood.

Both Washington and Jefferson advanced a foreign policy that would be alien in the federal city today. Non-intervention was the most pro-American foreign policy in the history of the United States.

There is much to learn from Washington and the founding generation. We just need to get it right so that our adversaries cannot point the finger back at us and say, “See, you are “whitewashing” history!”

I discuss Wilson’s piece and the founding generation on episode 857 of The Brion McClanahan Show.

What Do We Do About “Gut Level Hatred” in American Politics?

I’ve talked about this issue many times on my Podcast. Americans are angry, so much so that we are seeing rhetorical conflict unmatched since the 1850s.

At least we could define “woman.”

Regardless, all of the hand wringing and angst over the current polarization of American politics misses one key ingredient: centralization of power.

The culture war would not be an issue if we had real federalism.

That was the whole point. Massachusetts did not want to be governed by South Carolina and South Carolina did not want to be governed by New England.

Who does?

This was a commonly understood in the nineteenth century, but after the Lincolnian Revolution of 1861, we’ve lost sight of the beauty of federalism.


If people in Mississippi did not have to worry about those in California, they wouldn’t wring their hands wondering if Gavin Newsome becomes president.

Joe Biden would be irrelevant. So would Donald Trump.

So would the Supreme Court.

This should be a selling point.

Of course, the progressive left and right aren’t really interested in federalism because they want power and are willing to suffer through dark times so long as they can “own” the other side when they ascend to the throne.

Lincolnian nationalism is a disease that needs to be eradicated.

It can’t so long as Americans continue to believe in the “Righteous Cause Myth” and the glory of “Honest Abe.” “Conservatives” are as much responsible for this as the Left, perhaps more so.

This is why I talk about the problem so often.

You can’t say it loudly enough or often enough.

I discuss the issue on Episode 856 of The Brion McClanahan Show.

This “Jefferson Davis Document” is Fake

Did Jefferson Davis reply to the Emancipation Proclamation with a threat to enslave all blacks in America?

That is what some historically challenged people on social media think.

Their evidence is a broadside reportedly published in January 1863 by the Richmond Enquirer as “An Address to the People of the Free States by the President of the Southern Confederacy.”

In other words, Jefferson Davis went to a local paper, published a policy statement, and never mentioned it again. Ever.

This document screams “fake news.” It should. Even the Library of Congress calls it a fake.

But let’s examine the document with a critical eye.

First, Davis never used the term “President of the Southern Confederacy” in any public documents during the War. He was always referenced as President of the Confederate States of America, even when signing public papers.

Second, Davis never referred to Abraham Lincoln as the “President of the Non-Slaveholding States.” He always called Lincoln “President of the United States” so as to differentiate the Confederacy with the foreign government to the North. Like all Southerners, Davis never believed the United States ceased to exist once the South left the Union, regardless of what some modern academics claim. It was now a foreign country, just as the Confederate States represented a sovereign federal republic.

Third, Davis did respond to the Emancipation Proclamation in his annual address to the Confederate Congress. You know what is missing? All of the details from the supposed “Address to the People of the Free States,” like that proposal to enslave all free blacks in every State of the Confederacy and every State occupied by the Confederate army. Such a position would have required the consent of Congress. Funny Davis left that out. If he was so determined to pursue this course, he would have mentioned it, many times. He never did.

Fourth, Davis supposedly concluded the piece by arguing that the “Old Union” would so be put back together and that slavery would soon be nationalized, meaning every State would be a slave state and that all blacks would be enslaved or reduced to “helot” status. Davis never used this type of language in any public or private document.

Fifth, a review of the Richmond Enquirer yields no reference to this address on the date it was reported to be published. The Enquirer had a daily and weekly paper. Neither contains the “Address.” Nor does any other Virginia paper from the period. The only newspaper that mentions the document was a Pennsylvania paper in November 1863, and then as a document in the possession of a Northerner. Again, no paper mentioned the “Address,” either in the North or the South, in January 1863. Such a public statement would have been major news if Davis actually wrote it.

Sixth, Rice University, the home of The Papers of Jefferson Davis, has rejected it’s authenticity, as did one of the most important Jefferson Davis scholars of the early twentieth century. No manuscript exists, and if this document was truly from Davis’s pen, you can bet every “Righteous Cause” mythologist would be talking about it.

The “Address” exemplifies the problem of “Twitter” history. Those who advance a clear political agenda really want something like the “Address” to be real, so much so that they have a hard time believing any evidence to the contrary.

History has become activism that lacks understanding, and establishment historians are no better than those peddling “fake news” like the “Address.”

Of course, this presented a great opportunity for a Podcast, so I discuss the “Address” on Episode 850 of The Brion McClanahan Show.