In the face of the U.S. Supreme Court’s decision in Arizona v. United States, I invite my readers to revisit the column Arizona is right to defend against foreign invasion. In that column, I anticipated the fateful abrogation of state sovereignty and their own sworn duty to the U.S. Constitution the majority of Supreme Court justices have now perpetrated. My words then make an apt commentary on the opinion they have just rendered:
“… [I]t is evident insanity to insist that, when federal officials unlawfully refuse to investigate, apprehend and prosecute criminal acts that directly damage the people of a state, this unlawful dereliction is constitutionally enjoined upon the state’s government. It has been rightly suggested that the U.S. Constitution is not a suicide pact (Kennedy v. Mendoza-Martinez, 1963). Though in any given instance it may establish the U.S. government’s claim to primacy when exercising its constitutionally delegated powers, this in no way vitiates the duty of the state governments to exercise the powers reserved to them. They can and must protect their citizens from direct harm when the U.S. government unlawfully refuses to do so.
“In this respect, the influx of illegal immigrants is in the nature of an actual foreign invasion. Even when it comes to engaging in war, the Constitution forbids the states to act without federal authorization ‘unless actually invaded, or in such imminent danger as will not admit of delay’ (Article I, Section 10). Surely, if a state may, without federal authorization, go to war to protect its citizens from the imminent danger arising from foreign invasion of one type, it may, authorized by the letter and spirit of existing federal law, act to protect its citizens from the actual damage being inflicted upon them by an ongoing foreign invasion of another type.”
It’s interesting that, in taking issue with the court’s majority, Justice Scalia also recalls Article I, Section 10, but he says, “This limits the States’ sovereignty (in a way not relevant here) but leaves intact their inherent power to protect their territory.” However the full relevance of Article I, Section 10, cannot properly be construed without reference to Article IV, Section 4, which states that “The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; …”
As I pointed out in 2010, in a related article posted on my blog, the concept of invasion need not involve armed violence. Unarmed incursions can threaten the life, livelihood or moral identity of a people in ways more pervasive and damaging than armed forces. From the perspective of the Native American experience with settlers from Europe, our own history illustrates this truth in a host of ways and instances. So does ancient Rome’s experience with the so-called barbarian tribes driven by the conquest of their homelands to push into territory within the jurisdiction of its Empire.
The prudential considerations that led to the constitutional provision giving Congress the power to legislate a uniform rule of naturalization thus exist in the context of an explicit constitutional duty to protect each and every state from invasion. This explicitly stated constitutional directive conditions whatever use the United States government makes of the inherent sovereign power to admit or exclude people from U.S. territory, explicitly contravening the notion that it can be used in a way that permits foreign invasion of any state of the United States. Along with Article IV Section 3 (“… no new states shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.”), this forbids action by the U.S. government (including legislation by Congress) that in effect cedes jurisdictional control of territory within the jurisdiction of any state without the consent of the legislature of the state.
In Federalist No. 3, John Jay aptly observes that “Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their safety seems to be the first.” The duty of the U.S. government to protect each and every states of the union against invasion is self-evidently connected with this primordial concern. In passing, Arizona v. United States pays lip-service to the well-documented fact that lax enforcement of the immigration laws has seriously compromised the safety of the people in the States. It even takes note of the fact that this has led to a situation in which the U.S. government has given public notice that the safety of tracts of territory has, in effect, been compromised because control has passed into the hands of criminal elements.
When this occurs on account of particular circumstances, it may be a matter of only administrative concern. But in this case it occurs as the result of intentional, authorized, systematic dereliction of duty. It is being pursued with a will that includes efforts to enforce that same dereliction upon the state governments. It is therefore a matter that subverts the very heart of the foremost practical purpose for which the union of the states exists – which is their mutual defense against “dangers from foreign arms and influence, as from dangers of the like kind arising from domestic causes” (Federalist No. 3, emphasis added).
When any branch or combination of branches of the United States government embarks on such a path of constitutional dereliction, it ceases to be a matter of federalism, concurrent jurisdiction or legal mumbo-jumbo of any sort. It is an assault against the states respectively and the people, one that aids and abets the destruction of their sovereignty, their safety and their liberty. Like watchmen in the pay of an enemy who desert a city’s gates and walls, the assault first appears in the form of relinquished duties and responsibilities. But such dereliction leaves us naked to our enemies, and so represents an offensive strategy whose ultimate purpose encompasses the destruction of the nation.