All Eyes Are on Texas
All eyes are on Texas, with numerous states having indicated their support for the Lone Star State’s defiance of the federal government.
Constitutionally, Texas is on solid ground.
I’ve heard some people say this: since immigration per se is not mentioned in the Constitution (although naturalization is), then the relevant power rests with the states. Such people proceed to deploy this argument in defense of so-called “sanctuary cities.”
But if that argument can defend sanctuary cities, it can also and to the same extent defend the Texas move to try to staunch the flow of illegals coming through the southern border. What’s good for the goose is good for the gander, after all.
Now you may say: Woods, I don’t care about the Constitution. I care only about liberty!
You are free to say and think such a thing, and other people are free to be curious as to what American history and its constitutional tradition might have to say about the present situation.
And the facts are these:
The United States is not now, never was, and was never intended to be, a single, undifferentiated blob whose central government exercised plenary power.
The states preceded the Union, the same way the bride and groom precede the marriage. The Declaration of Independence speaks of “free and independent states” (and by “states” it means places like Spain and France) that “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” The British acknowledged the independence not of a single blob, but of a group of states, which they proceeded to list one by one.
The states performed activities that we associate with sovereignty. Massachusetts, Connecticut, and South Carolina outfitted ships to cruise against the British. It was the troops of Connecticut that took Ticonderoga. In New Hampshire, the executive was authorized to issue letters of marque and reprisal. In 1776 it was declared that the crime of treason would be thought of as being perpetrated not against the states united into an indivisible blob, but against the states individually.
Article II of the Articles of Confederation says the states “retain their sovereignty, freedom, and independence”; they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted. The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention.
And according to the great international lawyer Emmerich de Vattel in his 1758 book The Law of Nations, sovereignty is not forfeited by joining a confederation.
In the American system the peoples of the states are the sovereigns. It is they who apportion powers between themselves, their state governments, and the federal government. In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.
Since the peoples of the states are the sovereigns, then when the federal government exercises a power of dubious constitutionality on a matter of great importance, it is they themselves who are the proper disputants, as they review whether their agent was intended to hold such a power. No other arrangement makes sense. No one asks his agent whether that agent has or should have such-and-such power.
In other words, the very nature of sovereignty, and of the American system itself, is such that the sovereigns must retain the power to restrain the agent they themselves created. James Madison explains this clearly in the famous Virginia Report of 1800:
The resolution [of 1798] of the General Assembly [of Virginia] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential right of the parties to it. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution [in other words, the states — TW], to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another, by the judiciary, as well as by the executive, or the legislature. [Emphasis added.]
In other words, the courts have their role, but in “great and extraordinary cases” it would be absurd for the states, the fundamental building blocks of the United States, not to be able to defend themselves against the exercise of usurped power, even when the usurpation occurs at the hands of the courts. The logic of sovereignty and the American Union demand it.
These arguments were advanced by leading jurists in early American history and were taken for granted in political discourse in both North and South alike — and in fact the states asserted themselves in this manner more often in the North than in the South.
To be sure, one can find plenty of bad arguments against this position — e.g., “the Civil War decided that” (as if violence settles a philosophical argument), the Supremacy Clause means “federal law trumps state law,” James Madison opposed the idea of nullification, nullification is unconstitutional because it isn’t expressly mentioned in the Constitution — and I’ve answered them all in my 2010 book Nullification (here’s the audiobook link for those of you who enjoy listening).
Here’s the larger point: this is the kind of material nobody learns in school, and especially in law school. Years ago I lectured to a packed room at Columbia Law School (and later at other law schools, like Rutgers, the University of Missouri, and Florida International University, to name a few) and advanced these (unjustly) controversial propositions. Not a single person dared contradict me. Nobody in the room knew anything.
There is so much more to be said on this topic, but for now I’ll close with this: there is scarcely a classroom in America in which you’ll learn a word of what I’ve written here.
Do you see now why I operate Liberty Classroom, my dashboard university for normal people?
If you’re a member of Liberty Classroom, you already knew all this, and a heck of a lot more.
That’s why I built this answer to the indoctrination factories.
Get discounted entry for the next 24 hours with coupon code TEXAS:
Thomas E. Woods, Jr., is the 2019 winner of the Hayek Lifetime Achievement Award from the Austrian Economics Center in Vienna. He is a senior fellow of the Mises Institute and host of The Tom Woods Show, which releases a new episode every weekday.
Tom holds a bachelor’s degree in history from Harvard and his master’s, M.Phil., and Ph.D. from Columbia University. He has appeared on CNBC, MSNBC, FOX News Channel, FOX Business Network, C-SPAN, and Bloomberg Television, among other outlets, and has been a guest on hundreds of radio programs, including National Public Radio, the Dennis Miller Show, the Michael Reagan Show, the Dennis Prager Show, and the Michael Medved Show.