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Sovereignty, Preempted
Even the conservative justices don't understand states’ rights.

Justice Antonin Scalia

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Andrew C. McCarthy

Justice Antonin Scalia, in a characteristically electrifying dissent, seized on the cataclysm at the heart of the Supreme Court’s ruling in the Arizona immigration case. It came in the form of a question: “Would the States conceivably have entered the Union if the Constitution itself contained the Court’s holding?”

Fittingly, Scalia summarized this holding, in Monday’s Arizona v. United States case, as a hypothetical provision proposed by the Framers when adoption of the Constitution was being debated: Imagine if Article I had granted Congress the power “to establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” In short, the Court ruled that the states can be precluded from their natural right of self-defense against alien outlaws if Congress, in its discretion, decides to enact national immigration standards — even if the president refuses to enforce what Congress has prescribed. Hence, at the whim of Leviathan’s central planners and passively aggressive (non-)police, the states are defenseless.

Being defenseless in this context is not merely a practical problem — namely, the problem that states and their citizens are certain to suffer physical and financial harm. Being defenseless raises, in addition, two other considerations of epic importance.

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First, the right of self-defense is a vital, ineliminable aspect of sovereignty. If it is eliminated, a state is no longer a sovereign; it becomes a subject, at the mercy of its federal master’s fancy. Second, the guarantee that states are sovereign, and would remain so, is a vital, ineliminable aspect of the states’ agreement to adopt the Constitution and create the Union. If it is eliminated, the solemn compact has been broken. Why should a state remain in a union whose government will neither protect it nor tolerate its fundamental right to protect itself?

As my friend Heather Mac Donald observes, Justice Scalia’s dissent is a “must read.” Heather also contends that Scalia’s explicit assertion of “a historic and inherent state authority to police state borders, regardless of what the feds do or do not do” has, up until now, “only been implicit” in the arguments made by supporters of the Arizona law (S.B. 1070). That is certainly true of the litigants’ arguments and the reasoning offered in judicial opinions.

It is a different story, however, in the commentariat. In fact, I emphatically posed just such an argument in an NRO column last year, when the high court decided Chamber of Commerce v. Whiting, a related Arizona immigration case (upholding the power of states to revoke the business licenses of employers who hire illegal aliens). Further, I offered the same federalism theory when Heather and I discussed preemption on the Corner in 2010, after the first lower-court ruling on S.B. 1070.

Alas, his riveting dissent notwithstanding, Justice Scalia is as much a part of the problem as of the solution on illegal immigration. So are his three fellow conservative justices, and so is most of the modern conservative movement. That’s the reluctant conclusion I came to after the Whiting decision, and Monday’s ruling only confirms it.

The problem is an iteration of what ails conservatism across the board. We sing our paeans to federalism and limited government. But when it gets down to brass tacks, we reliably opt for big, centralized government, whether the issue is illegal immigration, unsustainable welfare-state programs, education, energy, or most of the remaining “internal objects,” as Madison put it — the matters that “concern the lives, liberties, and property of the people,” including the “internal order of the state,” that proponents assured skeptics the Constitution would retain in state control. We just think we can do big “compassionate” government smarter and less intrusively than the Left — or, at least, that’s what we tell ourselves.


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