The Constitution is more than a court.


View 630 Tuesday, June 26, 2012

The Supreme Court has upheld a fundamental right of Arizona to enforce Federal law on immigration, while holding that the making of that policy is the province of Congress. Arizona can’t make it a crime to hold a job if you are an illegal alien. It can ask your immigration status if you come to the attention of police by some other means. This is hard to quarrel with.

The Administration, in a fit of pique, is trying to criminalize Arizona’s enforcement of the law, and has set up hot lines for denouncing law enforcement officers. I wonder how long it will take the Tea Party to start looking for Federal officers to denounce. This weapon has more than one edge.

Meanwhile, Arizona no longer has any effective control of its borders according to the President. The Emperor spoke in haste, and will probably repent at some point. We can look for more interesting developments in Arizona and along its borders. We can also wonder what effect this will have on the legal immigrants who went through the rather onerous requirements to come here. Some of them have citizenship, won by hard work and dedication. Will they be inclined to vote for those who say that all that hard work and dedication was a waste of time? Not all immigrants can vote. although the President doesn’t seem entirely aware of that.

And the Decision on ObamaCare is coming soon.


The Things Decided at Vicksburg

You said…

"And the Supreme Court has spoken with an odd voice, claiming that the Constitution puts limits on the States that had Virginia understood would be a consequence of the Union, neither Virginia nor the Carolinas would have joined the Union. There would be no United States had the original signers understood that they were giving up some of the most basic fundamentals of sovereignty."

I submit that Ole "Honest Abe" and some 600,000 American casualties ended real state sovereignty some 150 years ago…except of course when part of Virginia seceded from its parent. The primary role of states now appears to be the implementation of unfunded federal mandates.

Had they realized in time joining the United States was a "one state, one vote, one time" choice several states would have chosen differently.

Charles Brumbelow

This raises a point that requires comment. Whether or not it was the intention of the writer, it says that the key question of the nature of the Union is over, having been settled by force of arms, and those who do not approve of the current distribution of power between Washington and the States should – what? Stop talking about it. Accept it. Or, if they are unhappy, plot bloody revolution? Neither seems an effective course of action. Nor does organizing a new secession movement seem very attractive.

Moreover, it assumes the very disputable notion that the issue was settled once and for all by Appomattox, and from then on we have had a uniform movement toward nationalism and away from transparency and subsidiarity; that we are doomed to stay on that road.

It isn’t true, of course. The impeachment of Andrew Johnson failed of conviction: even the Reconstruction Senate recoiled from that. And then came the Hayes Tilden election , in which Reconstruction was ended on condition that the Republican candidate became President, while Bedford Forrest disbanded the Klan. And even during the depths of the Great Depression followed by World War II many Federal schemes failed. There remains a legal tradition in the United States for strict construction of the Constitution. That tradition isn’t so apparent among Harvard Law graduates, but it exists.

But leave all that: the key question is , why concede that the question is settled? A lot of people don’t think so; and the recent history of the United States provides considerable evidence that even on the theory of a “living Constitution” to be interpreted along pragmatic lines, centralization doesn’t work very well. The very phrase “transparency and subsidiarity” as the guiding principle of government is not mine, but that of Jane Jacobs, hardly a conservative firebrand. On purely liberal pragmatic grounds, the evidence shows that centralization is not always the answer to social problems, and often is the cause of some of the worst of them. Yes, some decisions need to be national – but not all of them, and that is becoming pragmatically clear. It is, for instance, abundantly clear that Roe v. Wade was a drastic error on pragmatic grounds, and the proper way to deal with abortion rights was to leave it to the states. That has also the great merit of being the obvious constitutional course: abortion is not mentioned in the Constitution and it was illegal in every state that adopted the Constitution at the time that state entered the Union. There has been no Amendment to change that. What gives the federal government power over the question? And on pragmatic grounds this has been terribly divisive.

Appomattox settled some things. The Civil War Amendments were adopted and became part of the Constitution. Slavery was abolished, and good riddance. The Bill of Rights was, sort of, almost, incorporated into a national Bill of Rights to be applied to the States as well as to the Federal government, which was stable for generations until the Warren Court went mad in discovering fresh new rights in emanations and penumbras. The Warren Court decisions were mostly wrong. Some are irrevocable but not all. And the makeup of the Court is controlled by the President and 60 Senators. Ted Kennedy was able to Bork Judge Bork, and the Democrats have made the court appointments almost purely political, but that blood sport is not part of constitutional law. None of this is universally approved, and none of that is irreversible.

I do not concede that the key question — can a nation be a world power and remain a constitutional republic rather than become an empire – was settled by Reconstruction. I do not believe that it is wrong to remind the courts of that. And I do believe that it is vital that the friends of liberty not give up.


I am closing some Firefox tabs that I’ve kept open as reminders but which I probably won’t get to. This is a mixed bag, and not all of it will be of interest to all readers here, but some may be worth your time.

There is a long bit on McNamara and the Strategy of Technology which will be worth the attention of those interested in those subjects. is my view on flying saucers and UFO’s.


On D D Harriman and the space program:

And a review of A Step Farther Out








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