Welcome to Liberrants, a blog dedicated to editorials, discussions, and studies of all things libertarian. Don't let the title mislead you; it's merely my attempt to be creative in describing myself as a "hopeful curmudgeon" who embraces the goal of the free, peaceful, economically vibrant society envisioned by America's founding fathers. Jump in! Contribute! Enjoy!

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Location: Tucson, Arizona, United States

A critically thinking curmudgeon whose goal, in addition to creatively venting about the imperfect world in which we live, is to induce critical thinking in others. The ultimate goal is to help bring about a peaceful world in which we can all live in freedom.

Thursday, July 08, 2010

Is Arizona's SB1070 Really Unconstitutional? (Updated)

As the effective date of Arizona's controversial SB1070 draws near and in light of the recent decision by the Obama [In]Justice Department to sue the state of Arizona over the law, a great deal of discussion has arisen as to the law's constitutionality. Given the fact that 1) neither this state's nor the Obama administration's “legal” minions have demonstrated even the slightest knowledge or comprehension of the Founding Document and 2) fewer people still will bother to research it themselves to find the answer to this question, I decided to TRY to answer that question for myself. Granted, I'm the farthest thing there is from a legal expert, but I decided to see what I could find within the Constitution that would either uphold SB1070 or strike it down.

The first place I looked was in Article I, Section 8, which enumerates the powers granted by the Constitution to the Congress. The closest provision I could find here that addresses the issue central to SB1070 is in the first part of the third clause of the article, which states:

[Congress shall have the power] To establish an uniform Rule of Naturalization...

Now naturalization isn't really the issue at hand in SB1070; the issue at hand is migration (or importation, if you will) of persons, not the establishment of their citizenship.

Section 9, on the other hand, bars Congress from prohibiting “the Migration or Importation of such Persons as any of the states now existing shall think proper to admit” until after the year 1808. This clause has been universally understood by historians, political scientists, and jurists to mean that Congress could enact a ban on the importation of slaves into the United States after that year, but was prohibited from enacting such a ban for the twenty-year period beginning from the Constitution's ratification leading up to that year. I suppose that if we are to consider the term “such Persons as any of the states now existing shall think proper to admit” devoid of any context whatsoever, one could conceivably make the case that Congress has the authority to ban states from admitting ANY immigrants, or even American citizens migrating from others states, under some convoluted interpretation of the Interstate Commerce clause. While this argument is absurd on its face, we must admit that Congress has stretched and contorted the ICC in other ways equally ridiculous and absurd, so it's not inconceivable that the SCOTUS could at some point use this clause as justification for the fedgov's interference with Arizona law and thus overturn SB1070. But let's let this remain within the realm of the preposterous and far-fetched for the time being.

Section 10 of Article I enumerates certain activities prohibited to the legislatures of the several states, activities that the Founders considered the responsibility of the federal government, specifically the Congress. These include:

  • Entering into treaties, alliances, and confederations with other states or foreign nations
  • Coining money
  • Emitting Bills of Credit or making anything but Gold and Silver coin an instrument of legal tender in payment of debts
  • Laying imposts or duties on imports or exports
  • Laying duties of tonnage, keeping troops or ships of war in time of peace, entering into agreements or compacts with other states or foreign nations, and engaging in war unless actually invaded or in imminent danger or invasion
While some of the more extreme immigration control advocates who also are ardent states' rights defenders might argue that this last item on the list, particularly the “invasion or imminent danger of invasion” applies to the current immigration situation, the likelihood of any federal court holding such a view as legally valid is remote, to put it charitably.

Article IV, Section 4 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 [emphasis mine]; and, on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.” This would seem to address exactly the issue of responsibility for defense of the nation's borders. But again, the question arises as to whether the Founders would have ever considered large numbers of immigrants, rather than armed troops in the service of a foreign government, to be an “invasion” as the meaning of the word is understood in the context of this constitutional clause. Given the definition of “invasion” as understood by all governments at the time, the answer, again, would have to be a resounding “no.” As for the term “domestic violence,” this term as used in the Constitution should not be confused with its contemporary meaning. Within the context of the Constitution, “domestic violence” means either an insurrection against the elected state government by rebellious citizens, or, in a more unlikely scenario, the invasion of one state by the militia forces of another. Neither one of these would seem to address the illegal immigration scenario. The closest scenario I can imagine would be an organization like, say, La Raza organizing an overthrow of the state government of, say, California (yes, I know, a most unnecessary act on La Raza's part, but that's fodder for a whole 'nother rant). Otherwise, there's nothing in this clause that touches on the immigration issue either.

Nothing beyond Article IV of the Constitution, both the original seven articles and the subsequent twenty-seven amendments, in any way, shape, or form even mentions, let alone addresses, the subject of immigration or who is ultimately responsible for enforcing immigration law. Going back to Article I, Section 8, Congress is responsible for setting up the process by which aliens are naturalized, but otherwise says nothing about enforcing immigration control. Apparently this was not an issue that greatly exercised the Founders. Indeed, why would it have been? During the period of this nation's infancy, the nation was sparsely settled and underpopulated. For this reason it made perfect sense to assume that there was plenty of room for all comers. More importantly, there was little basis for a national policy on immigration for the simple reason that, in those days when true freedom governed the land, the presence of immigrants had little or no impact one way or another on the freedoms or property of native-born citizens. There was no welfare state and no basis of taxation to support one. Therefore, an immigrant from Germany or Ireland in 1795 would not receive money from the government coffers to “establish” himself, and therefore did not cost his fellow citizens any money. Johann or Seamus either set up a business or worked for someone else who was willing to hire them, or they starved and went back to their native lands. Immigrants were expected to be self-sufficient or to rely on voluntary support or contributions from ethno-religious groups in their American communities. Therefore, since they didn't cost the public purse anything or put a strain on (nearly non-existent) “public resources,” the federal government didn't consider the movement of immigrants to be among its concerns.

So in absence of any specific guidance from the Constitution on the immigration enforcement issue, on what side of the argument does that put Arizona? To answer this question, let us refer to the oh-so-despised-and-neglected Tenth Amendment:

The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

It's really that simple, folks. Because the Constitution does not enumerate immigration control as one of the federal government's specific powers, it cannot be logically held to be within the federal government's constitutional purview, period. No, we might not all like that fact, and no, I do not agree with the motivation behind Arizona's passage of SB1070 or the manner in which the state intends to enforce it. But where states' rights are concerned, we take the good with the bad. After all, it's much easier to to fix “the bad” at the state and local level than to deal with centralized leviathan evil, a concept the Founders clearly grasped. They also seemed to have grasped, if not specifically stated, that the presence of “ferners” among the general population was a matter to be addressed by the states and localities in which such people lived, in response to specific local circumstances as they arose, not by a disinterested remote body hundreds or thousands of miles away. As with all things constitutional, the idea was decentralization, leaving the solution of practical matters to the lowest level of government or to the people themselves. Why should immigration have been any different from any other issue?

If anyone disagrees with my assessment, I'm all ears as to alternatives.


J.D. Tuccille has posted on his blog an analysis of what SB1070 is really all about.  Essentially, it's about Arizona's ruling redneckleptoplutocracy attempting to scapegoat "brown people" for the state's economic implosion that is of the ruling classes' own making.  I highly recommend that everyone give it a read.

Oh, and f*** the snowbirds!