Romney pleads the Tenth

Mitt Romney’s candidacy boasts several strengths. He is a successful businessman, an accomplished politician, and an articulate speaker. Romney is also perceived as economically conservative. In addition to those qualities he is photogenic, which is more essential to contemporary office seekers than a coherent platform. But Romney has drawbacks as well.

Some of Romney’s flaws aren’t actually flaws, such as Mitt’s oft-criticized Mormon beliefs. Pundits contend America isn’t ready for a Latter Day Saint president. That argument is familiar, and erroneous. Experts made the same case against a Catholic president just before America elected JFK, and against a black president before Obama. Thus Romney’s Mormonism is a moot point.

An equally empty argument concerns Romney’s lineage. Mitt’s Mormon ancestors practiced polygamy. However, Romney has been married to one wife since 1969. His “family values” appear impeccable. Mitt is no more a polygamist via ancestral link than a descendant of Jefferson Davis is a slaveholder. His heritage, too, is a moot point.

A legitimate criticism of Romney is his indecisiveness, as columnist Steve Chapman alleges in a recent editorial. Chapman’s main contention is Mitt’s willingness to change position at the drop of a hat and then deny having done so. Indeed Romney has a history of being a walking contradiction. He tried to out-liberal Ted Kennedy in a 1994 Senate race. Once pro-choice, Romney became pro-life. Once in favor of banning semi-automatic firearms, he became pro-gun. Yet to become pro-life and pro-gun are solid conservative changes.

Romney’s true Achilles Heel isn’t indecisiveness, religion, or heritage. It’s the Massachusetts healthcare overhaul he fostered. One of the key arrows in a conservative’s anti-Obama quiver is opposing ObamaCare. Can Romney distance himself from his Massachusetts system, after which ObamaCare was modeled? He can and he has. Furthermore, Romney’s defense is based on solid, conservative, pro-Constitution grounds.

Romney has cited the Tenth Amendment in reconciling Massachusetts’ healthcare plan with his criticism of ObamaCare. He contends the Constitution grants the central government no authority to deliver or mandate health coverage, nor does it prevent states from doing so. Thus Romney’s state program is defensible while Obama’s federal program is not.

Granted, the conservative position is to remove government entirely from healthcare, making Romney’s Tenth Amendment defense a technicality. But Romney can claim to have acted in the interests of Massachusetts. This position doesn’t necessarily defend government managed healthcare, but rather the right of each state to experiment with laws that fit the citizens’ desires. Favorable laws are retained while unfavorable ones are repealed. The entire nation suffered no loss of liberty under RomneyCare, as it will with ObamaCare.

Mitt Romney is a politician first and may be blowing smoke with his Tenth Amendment stance. But any candidate who makes a Constitutional argument for state sovereignty should please conservatives. To reject Romney’s defense entirely is to repudiate the principle of limited government and state sovereignty upon which our nation was created.

Arizona fulfills the federal government’s abandoned duty

Now that the federal government has formally filed suit to block Arizona’s efforts to identify illegal aliens the emotional rhetoric that has controlled the debate should take a back seat to reality. The Justice Department claims that Arizona has usurped the federal government’s authority over immigration and naturalization (U.S. Const., Art. I, Sect. 8) and the Constitution’s supremacy clause (Art. VI).

Odd how Washington becomes concerned with the constitutional delegation of authority only when federal power is challenged. There was little interest in the Constitution’s assigned powers when Congress passed the healthcare bill. Constitutional authority isn’t mentioned when card check is debated, or when Social Security and Medicare are discussed. However, despite its disdain for the document by which it is supposed to abide, the federal government seems to be on solid constitutional footing this time.

Congress has the authority to “establish an uniform rule of naturalization.” The reason the Founders granted this power to Congress was to avoid conflicts and wars with neighboring nations. John Jay argued in Federalist No. 3 that border states, the ones most likely to be affected by immigration and border disputes, were inclined to act “under the impulse of sudden irritation.” Therefore national control of the international borders provided a greater opportunity for sustained peace.

Alexander Hamilton affirms Jay’s testimony in Federalist No. 32. Hamilton contends, quite logically, that if each state enacts individual naturalization laws then the “uniform rule” demanded in Article I, Section 8 would be impossible. Thus legislative authority over the borders, immigration and naturalization belongs to the United States government. This power being granted to the national government is naturally denied to the states.

The United States is apparently correct in claiming authority over immigration law. Yet there are a few flies in the ointment that lend credence to Arizona’s position. Foremost, Arizona hasn’t enacted a law that regulates immigration or the naturalization process. What Arizona’s legislature has done is authorize state and local agents to address federal crimes. This isn’t unprecedented.

Sixty-three state and local jurisdictions, seven in Arizona alone, currently deal with illegal immigrants via Immigration and Customs Enforcement’s 287g program. State and local authorities are instrumental in identifying illegal aliens for a variety of reasons, not the least of which is proximity. Local police are likely to be the first officers at the scene of any violation. However, 287g is based upon ICE, a federal agency, authorizing local departments to enforce federal law. If 287g were the sole example of local authorities addressing federal crimes the case might be closed. It’s not.

Rhode Island state police have been enforcing immigration law on the weight of Gov. Donald Carcieri’s executive order since 2008. The Kentucky State Patrol and a local fire chief were first to investigate a possible arson at a Williamsburg, KY apartment building. Police in Amherst, NY are investigating a rape that occurred early on the morning of July 5, 2010. The New Castle County (DE) police are actively seeking leads in the June 9, 2010 abduction and rape of a young girl. Also in Delaware, the state police are investing two unrelated kidnappings and rapes.

According to Sumpter and Gonzalez website—a law firm in Austin, Texas—federal crimes include arson, rape and child abduction. This being the case, it’s apparent that local police units are investigating federal crimes and have a strong interest in apprehending the offenders. Why not immigration violators, too?

For a national government to refuse to exercise an authority--in this case, enforcing the borders--amounts to abandonment. Nature abhors such a vacuum, so the United States’ abdication of naturalization enforcement must be filled. Enter Arizona’s immigration enforcement law. In fact, Arizona’s action is in keeping with our nation’s founding principles.

Thomas Jefferson wrote in the Declaration of Independence that when a government no longer meets the needs of the governed it is open to alteration. Arizona’s reaction is therefore mild. Instead of abolishing federal authority, or supplanting federal statutes, the state has upheld both in enforcing the existing national law.

States aren’t obligated to tie their hands or turn their heads when Washington ignores its assignments. If that were the case, what would happen if Washington ignored its duties in other areas? Reconsider Article I, Section 8, which not only establishes the federal government’s naturalization powers but also compels Congress to “provide for the common defense . . . of the United States.”

If a foreign power were to invade one of the several states the national government would be constitutionally responsible for repelling the invaders. Suppose Washington simply refused to deploy the armed forces to the sieged state? Would that state be constitutionally bound to accept the occupying force, since its defense is an established federal duty? Only the most naïve pacifist would accept such a proposition.

A state so occupied would be well within its right, and obligated to its citizens, to act against the occupiers. The same holds true when the invading force is comprised not of military personal, but of illegal aliens.

Washington’s wink-and-a-nod approach to immigration is a losing position whether or not Arizona successfully defends its immigration enforcement statute. A federal victory will create a tsunami of resentment towards the national government. Congress will then be compelled--this being an election year--to reluctantly consider the best interests of the people and the states in regard to action on illegal aliens. An Arizona victory affirms a state’s right to act in its own interest in areas not delegated to Congress, or in areas where Congress has neglected its constitutional charge.

This column originally appeared on American Thinker.

Statehouses are the key to restoring constitutional government

It’s true that a change in federal administration will prompt a disgruntled few to dream of revolutionary immortality. Equally true, opponents will use any questionable statement or action to paint the “revolutionaries” as violent, half-witted zealots. Welcome to America.

There’s no shortage of such right-wing resentment toward government, most of it justified. Also in large supply are opinionated leftists armed with word processors, a penchant for misinformation and a desire to mischaracterize any opinion with which they disagree.

Last year the decidedly left-wing blog Crooks and Liars reported a “million man militia” march on Washington. Typically, the writer belittled the event as a gathering of paranoid right-wing lunatics determined to shoot something.

If this march occurred it must have went off without a hitch. In fact, reality has spoken and the pro-freedom rallies that have taken place have been entirely peaceful, contrary to the leftist’s dire warnings. No one has invaded the Capital or tarred and feathered a congressman, as much as they may deserve it.

So the question isn’t whether America’s revolutionary spark should be revived but in what manner. We are a people born of rebellion and nurtured on revolution. In the Declaration of Independence Thomas Jefferson wrote that the people have the right to abolish any government that’s hostile to basic liberty. Several states are taking Jefferson’s words to heart, including a group of Oklahoma legislators who are mulling the creation of a state militia to resist federal encroachments on their sovereignty.

The usefulness of such militias is debatable, and will surely draw howls of protest from the left. But the idea of using state legislatures to counter the federal government’s fiscal irresponsibility and blatant disregard for constitutional limitations is workable.

The Founders themselves would be pleased, as evidenced in the language of the Ninth and Tenth Amendments. The Ninth recognizes federal authority but explicitly denies overt power to the central government in all areas not specifically delegated. The Tenth declares that all powers not expressly granted to the United States, or prohibited to the states, remain with the states and the people.

Our forefathers obviously intended a federal government that served the states and the people, not one that ruled over both. For the states to “delegate” any powers to the central government, via the constitution, they must retain all powers not granted to the United States.

States have previously exercised this option. Jefferson’s Kentucky Resolutions (1798) decried what was viewed as the central government’s unconstitutional assumption of power. Jefferson noted that any federal adventure into areas not authorized was an assault on state sovereignty. Therefore, the states had every right to declare those extensions “void and of no force.”
For example, commenting on the over-extension of federal authority, Mr. Jefferson wrote in the Eight Resolution:

Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy . . . every State has a natural right . . . to nullify of their own authority all assumptions of power by others within their limits.

This is the outlet for our revolutionary fervor. No less than our third president endorsed state nullification of federal excursions into unauthorized areas. The left’s portrayal of limited government activists as lunatics is nullified as well and talk of armed revolt is at best premature.

Flippant references to armed resistance momentarily soothe the soul. However, it also fuels the left-wing cranks and propagandists--like Crooks and Liars--who love to paint limited government proponents as violent nutcases. We owe it to the Founders and their experiment in self government to exhaust all prudent options before considering drastic and uncertain steps.

The return of constitutional government begins in the Statehouses. State legislatures can draft resolutions rendering unconstitutional federal intrusions upon personal liberty and state sovereignty “void, and of no force.” States can refuse to enforce unconstitutional measures within their borders.

Nullification is a worthwhile, peaceful alternative to revolutionary rhetoric. Let’s see what it produces before storming Congress with torches and pitchforks.