Sovereignty Demands Protection of Individual Liberty (or Why Abuse of Authority Will Kill Federalism)

Hungry for labor, early American law conferred citizenship on all who came, remained for five years and renounced all foreign allegiances.  Despite the colonial kerfuffle beginning in 1776, Great Britain determined that all who were born British subjects remained British subjects in perpetuity despite any denouncements of loyalty to the Crown. 

Armed with this idea, in the early 19^th century, British troops boarded American ships, seized all British-born aboard and forced them to serve the British Navy.  This was called “impressment”, a fancy word for an unreasonable seizure.  The American government was outraged.  Colonial abuses, General Warrants and Writs of Assistance, had inspired the ratification of the Fourth Amendment protecting all from unreasonable searches and seizures. It is fair to say that integrity, impressment and immigration were catalysts for the first declared war in the history of the United States of America.

The bicentennial of the War of 1812 provides a fitting backdrop for the Supreme Court decision in Arizona v. United States,  WL 2368661 (2012).  Although the decision is based on principles of federal preemption regarding immigration policy, history affirms that the one portion of Arizona’s law left intact will result in an unreasonable seizure of human beings 200 years after we went to war over this very issue.  

What begs comment is not so much the majority opinion, but the false history lesson in the dissent.  The dissenting opinion begins with this quote: “The United States is an indivisible ‘Union of sovereign states.’” Arizona v. United States, WL 2368661 (2012) (Scalia, J. dissenting) (citing and quoting Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 104 (1938)).  What a tidy little kitbag – what happens when we unpack it?

The Hinderlider case talks about the opportunity of individual states to create congressionally approved compacts for land use rights.  The full quote actually states, “[t]he compact-the legislative means-adapts to our Union of sovereign States the age-old treaty making power of independent sovereign nations.” The Court never conferred full sovereignty on states.  It averred that, as between themselves, states have authority to create enforceable agreements subject to congressional approval.  If there is a dispute, the Court will settle it.

This is what occurred in Rhode Island v. Massachusetts, 37 U.S. 657, 748 (1838) where the Court specifically declared that states had surrendered the right to judge their own boundaries when they joined the Union.  The very act of ratifying the Constitution limited individual state sovereignty in favor of submission to the federal Constitution. In Rhode Island v. Massachusetts, the Court affirmed its authority, by virtue of that Constitution, to settle equitable claims of borders between the states (as an aside, Justice Roger Taney dissented in that case stating that the Court should not delve into “political” matters; apparently he forgot this tenet in 1857). 

So, the source of the quote in the dissenting opinion of Arizona v. United States declaring that states were as sovereign as nations, in fact, confirmed the opposite. The establishment of the federal government in 1789, by design and definition, limited the sovereignty of the independent states by virtue of Union.  Early history including the assumption of the national debt for the Revolutionary War, the federal taxation power and the elimination of tariffs by state governments confirms this idea. 

Completely erasing history, the dissent suggests that this portion of the Constitution “acknowledged” a power of immigration in the federal government: “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight....” Arizona v. United States, WL 2368661 (2012) (Scalia, J. dissenting).  The dissent ignores the fact that the purpose of this provision was a federal ban the international slave trade (with the hope that slavery would die a natural death by attrition).  To suggest that there was any discussion or concern about foreign immigration either by individual states or the federal government in the 18^th century when the nation occupied a tiny fraction of the continent and travel was slow and dangerous is preposterous.

The truth is that at the time of ratification, the nation was desperate for labor; the slave states (with the assistance of the non-slave states) “migrated or imported” Africans; the non-slave states could not bring people in fast enough, many who came did so as indentured servants.  The section of the Constitution referred to by Justice Scalia is an embarrassment; it states that the federal government will allow the trafficking of human beings for sale from 1789 until 1808.  That is not an immigration policy; it is a crime.

  

So, the dissent is historically inaccurate, and inaccurate in a fairly terrifying way.  The Declaration of Independence pledged life, fortune and honor in pursuit of liberty for all.  Constitutional compromises regarding democracy and liberty ultimately led to civil war.  Indeed, the aspirational promise of America has consistently forced restraint, not expansion, of state sovereignty in favor of national ideals. 

The Thirteenth Amendment abolished slavery (okay, in theory it abolished slavery…)  This amendment also modified the original Constitution as to congressional representation.  Of the Framers, Northern voices called for all slaves to be granted the vote and fully counted for purposes of congressional apportionment or, if denied the vote not counted at all; Southern voices wanted slaves to be denied the vote but fully counted for apportionment purposes; the 3/5 determination was a compromise.  The Fifteenth Amendment guaranteed the right of all citizens to vote (okay, in theory it guaranteed all citizens the right to vote…)  These two constitutional amendments acted to limit sovereignty of states regarding property rights, humanity, and how to determine democratic representation in the federal government.  

The Fourteenth Amendment did several remarkable things not the least of which was to confer citizenship where citizenship had been denied, mandate that all citizens be granted the same privileges and immunities AND further restrict the sovereignty of states by affirming that no state had the authority to deny any person of life, liberty or property without due process of law.  Rather than now viewing each state as a sovereign, the Fourteenth Amendment affirmed that the federal government could and would call the shots as to citizenship as well as due process and equal protection of the laws for all people, not just citizens.  

It is irrational to aver that the individual states of the United States of America are fully sovereign entities.  In the most aspirational model of federalism, in fact, states can (and should) enact laws and rules only to make life better for inhabitants, not worse.  However, history precludes the notion that American states are sovereign nations with authority to patrol their own borders or deny equal protection of the laws. 

Of course, this has nothing to do with the Court’s concerns and conclusions in Arizona v. United States; there the issue was federal preemption and whether national interests essentially trumped the state’s, not the Fourteenth Amendment.  The majority did not declare states to be sovereign in the manner suggested by the dissent.  But, the crux of the dissenting opinion does resonate with other Court members and the public despite its flaws; further the Court left one provision of Arizona’s law intact which will be challenged under the Fourth and Fourteenth Amendments.  

Putting aside the already harsh and misguided national immigration policy and pretending for a moment that it is just and fair in a way Arizona’s new policy is not, the provision that remains, SB 1070 section 2(B), will likely lead to extended detentions of people because of the way they look or talk or the area of town in which they travel.  Sure, they have to be arrested first, but given the conventional standard for probable cause, that is a mere technicality. In addition to restraints of liberty, it is unclear what will happen with those detained by Arizona authorities if the federal government declines to proceed with deportation procedures.

George Santayana warned that those who fail to learn from history are doomed to repeat it.  Our history demonstrates that for all of our aspirations, for all of our ideals, we are societally challenged to live up to our promise.  Arresting people first, Arizona will detain people who speak with accents, it will detain people with darker skin, it will detain people who authorities believe - in Justice Scalia’s unsettling words - “have no right to be there.”  The dissent has it all wrong: sovereignty is not based upon the power to exclude; it is based upon liberty and independence.    

States should not be constrained in conferring the promise of America to ensure equal privileges and immunities, due process of law, and opportunities for freedom and liberty for everyone.  But, if past is prologue, when states seek to deny equal privileges and immunities, deprive due process of law and limit freedom and liberty, they ultimately lose sovereignty as a result.  Instead of the goal of federalism – which is greater freedom – this abuse of authority leads to its demise.   

As we commemorate the War of 1812, we remember the war “heroes”, we rejoice in the Star Spangled Banner, but we forget why the war started, we ignore the lasting trauma to Native Americans it perpetuated, and we have no idea who won.   United, we once went to war to ensure that those loyal to America could remain free in her borders.  Divided, we now clamor to deport those very same folks.