Tag Archives: United States Constitution

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Sorry, Judge Napolitano: Immigration Isn’t “Foreign Policy”

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Seal of the United States Court of Appeals for...
Seal of the United States Court of Appeals for the Ninth Circuit. (Photo credit: Wikipedia)

By the time you read this, the US Court of Appeals for the Ninth Circuit may have handed down a ruling for or against president Donald Trump’s executive order banning travel and immigration from seven countries. Two states (Washington and Minnesota) are suing to kill that order.

Andrew Napolitano — a prominent constitutionalist and libertarian commentator, not to mention a former New Jersey Superior Court judge — writes in Reason that the states don’t have legitimate standing to sue. Why? Because the Constitution provides for quite a bit of presidential latitude on foreign policy.

I’ll explain why Judge Napolitano is wrong on the details momentarily, but first let’s get one thing out of the way: Immigration is not a foreign policy matter. Foreign policy relates to matters outside the United States and to relations between US government and other governments around the world. Immigration relates to individuals wishing to enter and possibly reside in the United States. It is therefore a matter of domestic, not foreign, policy.

It’s also a matter constitutionally reserved to the states, which is where Judge Napolitano really steps in it. He hangs his argument for the order and against the states’ legal standing on the fact that “[a] 1952 federal statute permits the president to suspend the immigration status of any person or group whose entry into the United States might impair public health or safety or national security.”

But that statute is plainly unconstitutional, for the same reason that the states have standing. Why? Because per Article I, Section 9 of the Constitution, “The 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 …”

Article V of the Constitution forbids amending that provision prior to 1808, and no amendment to it has been proposed or ratified since that time. Congress scrupulously observed that restriction for nearly a century. As with many restrictions on federal power, it eventually got ignored. But it’s still “the supreme law of the land.”

The Constitution doesn’t enumerate a federal power to regulate immigration. In fact it clearly and unambiguously reserves that power to the states. That makes the statute Judge Napolitano references unconstitutional, and the executive order hinging on it void. Obviously states have standing to sue when the federal government usurps a power the Constitution reserves to them.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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There’s No Such Thing as an Illegal Knife

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“Nationwide, knife laws vary in neighboring towns, counties, cities and states,” writes Jesse J. Holland for the Associated Press. “This mishmash makes it difficult for citizens to comply.”

The AP’s interest in knife laws stems from the recent death, in police custody in Baltimore, of Freddie Gray. Police justified Gray’s arrest by claiming he was carrying an “illegal”  switchblade knife. It turned out that the knife was a perfectly “legal” blade.

That aside, Holland is wrong in any case. Knife laws don’t vary from town to town, county to county, state to state. There’s one federal knife law. It applies to all levels of government in the United States, and unlike most laws these days it is simply written and impossible to misunderstand:

“[T]he right of the people to keep and bear arms shall not be infringed.”

You may recognize that as the operant clause of the 2nd Amendment to the US Constitution. And you should recall that the US Constitution proclaims itself the “supreme law of the land,” superseding all others which conflict with it in any way. As Chief Justice John Marshall wrote in Madison v. Marbury, “an act of the legislature repugnant to the constitution is void.”

Freddie Gray’s knife was not illegal, because in valid US law there is no such thing as an illegal knife (or gun). State, county and local ordinances which infringe on the right to own or carry any weapon are plainly unconstitutional and therefore void. They are also indescribably stupid and evil.

Stupid, because laws are only effective  if they are obeyed. Since criminals don’t obey laws, the sole effect of laws prohibiting possession of weapons is to disarm victims.

Evil, because in the priority of rights — life, liberty and the pursuit of happiness — life comes first. You can’t be free, nor can you seek happiness, if you’re dead.

Indisputably corollary to the right to life is the right to defend that life against any and all threats. Lacking the anatomical defenses found in other animals (claws, poison glands, etc.), we must instead rely on wit and invention. To forbid us possession of the tools of self-defense is to preemptively deny us the exercise of our primary right.

There’s no such thing as an illegal knife. There’s no such thing as an illegal gun. That claim, made explicit in the 2nd Amendment, is implicit in the laws of nature.

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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Constitutional Convention: A Dangerous and Unnecessary Game

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English: Painting, 1856, by Junius Brutus Stea...
English: Painting, 1856, by Junius Brutus Stearns, Washington at Constitutional Convention of 1787, signing of U.S. Constitution. (Photo credit: Wikipedia)

Supporters of a national constitutional convention, as provided for in Article V of the US Constitution, have gained the support of 27 state legislatures for the idea. They need 34.

Republicans and Democrats are at war both with each other and within their own parties over the proposal. Some Republicans want such a convention for the purpose of getting a “balanced budget” amendment.

Some Democrats also want a convention for the purpose of overturning the US Supreme Court’s Citizens United ruling and regulating political campaign spending.

Some members of both parties fear that a convention might get out of hand, producing unforeseen  results. History says these Cassandras are correct.

In May of 1787, delegates from 12 of the 13 states met in Philadelphia to propose amendments to the young nation’s Articles of Confederation. With Rhode Island boycotting and the Articles requiring ratification by all 13 states to amend, the idea looked dead on arrival.

But the Philadelphia convention was, in essence, the first stage of a coup d’etat. Instead of proposing amendments for unanimous consent, the delegates rolled out plans to abandon the Articles for an entirely new system of government, peremptorily re-setting the bar for their new “Constitution.” It would, they announced, become effective upon ratification by only nine states.

For better or worse, they pulled it off.  The US Constitution has been “the supreme law of the land” since 1789.

A new constitutional convention is a bad idea for two reasons, both rooted in our history.

The first reason, as outlined above, is that regardless of the reasons for calling such a convention, it would likely end up recommending amendments above and beyond — or contrary to — those its promoters contemplate. It could even go rogue, as Philadelphia’s cabal did.

The second reason is that, just as the existing Constitution  is more honored in the breach than in the observance, any amendments moved by a new convention and ratified by the states would be similarly treated. New government powers created by the new amendments would be vigorously used. New limits on government power so created would simply be ignored.

We don’t need a balanced budget amendment. If Congress wanted to balance the budget, it would do so. If the Constitution requires it to do so and forbids it to borrow money, the politicians will find a way. There will likely be an exception for times of war, so they’ll just declare war and never undeclare it. Or they’ll just print money and give it to themselves to spend, inflating the money in our pockets as a hidden tax.

As far as money in politics is concerned, there’s no chance whatsoever of reining that in. Money always finds open wallets to worm its way into, constitutions and laws notwithstanding.

If the promoters of a constitutional convention place so much importance on the US Constitution, perhaps they should turn their attention to making America’s politicians obey it as it exists. That would be a good start toward meaningful change.

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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