Sunday, August 8, 2010

We live in a world of constitutional illiterates

Over the last couple of months I've read several editorials by several different newspaper authors decrying Arizona's disregard for a "fundamental constitutional principle" in making their own immigration law.

What is the fundamental constitutional principle commonly cited by all of these writers? That "federal law trumps State law" of course. Yeah, and "immigration is a federal issue" too. Right.

One editorial writer, Mike Jones of the Tulsa World, cites Article VI, supremacy clause, and dogmatically asserts that this provision means that federal law trumps State law without condition or circumstance, thus obliterating the meaning of the provision. Another editorialist declares that Arizona's law must not stand because it violates the constitution by usurping federal power. Hmm., let's investigate the matter for ourselves:

First, Article VI, supremacy clause declares that federal laws made in pursuance of the constitution are supreme to State and local laws. Can we agree on that?

Second, the tenth amendment declares that the powers not delegated to the federal government by the constitution, nor prohibited by it to the States are reserved to the States, etc. Can we agree on that?

Third, Article I, Section 8 delegates to the federal Congress authority to make an uniform rule of naturalization. Surely we can agree on that.

Fourth, since naturalization is not immigration and vice versa (we can agree on that, can't we?), and since, therefore, the constitution neither delegates authority over immigration to the federal government, nor prohibits it to the States (uh oh, this one is liable to stick in someone's crawl), and since only federal laws made pursuant to the constitution are declared by the constitution to be supreme over State and local laws,


since Arizona's law in no way infringes upon the federal government's power to establish a uniform rule of naturalization,

Therefore, I can only conclude that not only is Arizona's immigration law completely constitutional, but that since it IS made in pursuance of the constitution as written, unlike federal immigration law, that Arizona's immigration law trumps federal immigration law, per Article VI, Supremacy clause and the Tenth Amendment.

Good day!


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Immigration and Naturalization said...

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The_Editrix said...

Terry!!! How good to see you back!!!

I hope you and your loved ones are well.

Regards from Germany

Anonymous said...

Weird that the spam-bots found your post so quickly, though.

I think that you're missing a beat by failing to note that the Arizona law in no way contradicts or impairs any existing Federal law (regardless of Constitutional issues of supremacy). The Arizona law is simply giving state officials some procedural responsibility for seeing that existing Federal immigration laws are enforced. It's like having a law saying that State police must report counterfeit currency to the Secret Service if they discover any.

However, if the Federal government did pass a law legalizing unregulated\undocumented immigration, that would completely fly in the face of Article IV, Section 4, which dictates that the United States shall protect each State from Invasion. And of course there is Article I, Section 10 to consider, which reserves the right of individual States to wage war (with all the powers that implies) in the event of actual invasion. Given that Arizona has been actually invaded, they can declare war and begin military strikes against Mexico (and any powers allied with Mexico) any time they please, according to the Constitution.

See, the problem isn't that there is any unclarity about what the Constitution says, the problem is that some people simply do not like what the Constitution says.

Mild Colonial Boy, Esq. said...

Welcome back - I'm glad I kept you in my Reader.

Terry Morris said...


You're surely right about my missing a beat and for the reasons stated. I missed another beat in the post by failing to mention the way the federal government misuses the citizenship and equal protection clauses of the fourteenth amendment to establish federal supremacy in law making. And of course there's the issue of involuntary servitude being illegal in the United States. I think that would include a State being involuntarily subject to the tyranny of the federal government.

Of course, section two of the fourteenth amendment proves that the framers had no intention of overthrowing the principles that precede it. If someone can show that Arizona's law violates the provisions of section one then section two establishes a proper procedure for dealing with that. That procedure involves reducing the number of representatives the State of Arizona is entitled to in the federal Congress. And that's all it involves. But there has to be an actual violation first.

Unfortunately I think you've hit the nail squarely on the head in the final sentence of your comment. Some people just don't care what the constitution says on certain issues because they don't like what it says.

Thanks for the comment.

Thank you Nora and Mild Colonial Boy for checking in.


Kurt Manwaring said...

The constitution is open to interpretation. This fact alone is responsible for plenty of debate and controversy. You raise a valid point in that it seems we are often apt to cite the constitution as the rationale for our case without actually being aware of what the constitution states. An appreciation for the constitution is admirable, but an actual knowledge of its contents is a trait that we should all seek to develop to a greater degree.

Anonymous said...

While anything may be regarded as "open to debate" (including the meaning of the word "is"), the Constitution was never intended to be anything other than perfectly clear and (this is the clever part) concise.

Therefore, the predominance of debate over what the Constitution means is not because of any difficulty in finding out exactly what it says, but only because so many people do not wish to acknowledge it.

On the one hand, I'm puzzled over exactly how any literate, politically aware person could explain not ever having carefully read the actual text, but it seems that is the most common excuse for ignorance. Then come the claims that there is any unclarity in what the very specific language indicates. Of course those who make such claims are always embarrassed to produce any section of text which is supposedly ambiguous.

But if one postulates that those who misinterpret the Constitution are really aware of what it unambiguously states, and merely do not like the constraints it places on their own authority, there is no difficulty in understanding their behavior.

Some say, never attribute to malice what can be explained by stupidity. I find the corollary more useful, when someone is pretending unbelievable stupidity, they are probably motivated by malice.

Terry Morris said...

Well, we could cite Alexander Hamilton in Federalist no. 33 on the matter if we thought it might do someone some good.

Speaking of which, I'd personally like to whack the Mike Jones's of the world upside the head with a hardbound copy of the Federalist Papers a couple of dozen times, or, until said person agreed to sit down and read them, whichever comes first.