Posted on 01/26/2024 11:42:00 PM PST by RandFan
@ThomasEWoods
Texas is in the right constitutionally (in case that still matters to anybody).
I've heard some people say this: since immigration per se is not mentioned in the Constitution (although naturalization is), then the relevant power rests with the states. Such people proceed to deploy this argument in defense of so-called "sanctuary cities."
But if that argument can defend sanctuary cities, it can also and to the same extent defend the Texas move to try to staunch the flow of illegals coming through the southern border. What's good for the goose is good for the gander, after all.
Now you may say: Woods, I don't care about the Constitution. I care only about liberty!
You are free to say and think such a thing, and other people are free to be curious as to what American history and its constitutional tradition might have to say about the present situation.
And the facts are these:
The United States is not now, never was, and was never intended to be, a single, undifferentiated blob whose central government exercised plenary power.
The states preceded the Union, the same way the bride and groom precede the marriage. The Declaration of Independence speaks of "free and independent states" (and by "states" it means places like Spain and France) that "have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do."
The British acknowledged the independence not of a single blob, but of a group of states, which they proceeded to list one by one.
The states performed activities that we associate with sovereignty. Massachusetts, Connecticut, and South Carolina outfitted ships to cruise against the British. It was the troops of Connecticut that took Ticonderoga.
In New Hampshire, the executive was authorized to issue letters of marque and reprisal. In 1776 it was declared that the crime of treason would be thought of as being perpetrated not against the states united into an indivisible blob, but against the states individually.
Article II of the Articles of Confederation says the states "retain their sovereignty, freedom, and independence"; they must have enjoyed that sovereignty in the past in order for them to "retain" it in 1781 when the Articles were officially adopted.
The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention.
And according to the great international lawyer Emmerich de Vattel in his 1758 book The Law of Nations, sovereignty is not forfeited by joining a confederation.
In the American system the peoples of the states are the sovereigns. It is they who apportion powers between themselves, their state governments, and the federal government. In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.
Since the peoples of the states are the sovereigns, then when the federal government exercises a power of dubious constitutionality on a matter of great importance, it is they themselves who are the proper disputants, as they review whether their agent was intended to hold such a power
No other arrangement makes sense. No one asks his agent whether that agent has or should have such-and-such power.
In other words, the very nature of sovereignty, and of the American system itself, is such that the sovereigns must retain the power to restrain the agent they themselves created.
James Madison explains this clearly in the famous Virginia Report of 1800:
"The resolution [of 1798] of the General Assembly [of Virginia] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential right of the parties to it.
"The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that THE JUDICIAL DEPARTMENT MAY ALSO EXERCISE OR SANCTION DANGEROUS POWERS BEYOND THE GRANT OF THE CONSTITUTION; and consequently that the ultimate right of the parties to the Constitution [in other words, the states -- TW], to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another, by the judiciary, as well as by the executive, or the legislature." [Emphasis added.]
In other words, the courts have their role, but in "great and extraordinary cases" it would be absurd for the states, the fundamental building blocks of the United States, not to be able to defend themselves against the exercise of usurped power, even when the usurpation occurs at the hands of the courts. The logic of sovereignty and the American Union demand it.
These arguments were advanced by leading jurists in early American history and were taken for granted in political discourse in both North and South alike -- and in fact the states asserted themselves in this manner more often in the North than in the South.
To be sure, one can find plenty of bad arguments against this position -- e.g., (a) "the Civil War settled that," (b) the Supremacy Clause means "federal law trumps state law," (c) James Madison opposed the idea of nullification, and (d) nullification is unconstitutional because it isn't expressly mentioned in the Constitution -- and I've answered them all in my 2010 book Nullification
Here's the larger point: this is the kind of material nobody learns in school, and especially in law school.
Years ago I lectured to a packed room at Columbia Law School (and later at other law schools, like Rutgers, the University of Missouri, and Florida International University, to name a few) and advanced these (unjustly) controversial propositions. Not a single person dared contradict me. Nobody in the room knew anything.
There is scarcely a classroom in America in which you'll learn a word of what I've written here.
Hence Liberty Classroom, my dashboard university for normal people.
Discounted entry for the next 24 hours with coupon code TEXAS: https://LibertyClassroom.com
Not if the gander is a conservative.
Ping
The Constitution specifically protects States against invasion, which is exactly what this is.
BTTT
AS if the Cloward-Piven gang in the FedGov gave a damm about the Constitution.
Another intended consequence of their immigration policy is to flood us with low-brows who don’t even know what Rule of Law is. Heinlein wasn’t wrong when he predicted the balkanization of America into what looked like medieval feudalism. Justice dispensed by favor of the local warlord, whose whim is the only law.
Balkanization is just another way of saying Islam has not conquered its host country yet.
It matters to me!
The Biden Administration will probably say that this is not an invasion because it isn’t military and the males aren’t armed. My understanding is that the Governments of Venezuela, Ecuador, and Nicaragua are encouraging and/or assisting military aged males and/or convicted criminals to cross the border illegally. Government involvement means that this is an invasion. The Governments responsible should be considered active hostile enemies of the United States and its leaders targeted accordingly.
Very good article.
“the peoples of the states are the sovereigns.”
Extremely important words here.
In the American system the peoples of the states are the sovereigns. It is they who apportion powers between themselves, their state governments, and the federal government. In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.
This is not understood in this nation. I remember arguments on FR about this many years ago.
This is perhaps the best article I’ve ever read about the Constitution.
He says they dont teach it in school
The states created the fedgov, they should have supremacy over it. The Constitution plainly limits the fedgov, but government draws people who love power and they always want more...
Yep - Read the whole page - many might learn something.
If the Feds can break Federal laws with impunity and then punish those who try to uphold the laws, the Feds have abdicated all authority over us...
Problem is that we are no longer a republic.
Until we restore our republic, the law and constitutionality are whatever Deep State says they are.
Presently, there is a third entity not mentioned in the Constitution.
Those entities are City States which have grown and amassed power separate and distinct from the States. The City States may actually control the state governments and thus the states.
I suggest rereading our Declaration of Independence.
More and more of that is sounding frighteningly familiar...
If they use that argument they must release J6’ers from the gulag. They were not military and not armed for their so-called insurrection.
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