Thursday, July 29, 2010

Self Defense?

[From Joel] In previous times article IV section 4 of the Constitution has been considered to be without consequence either being obvious or unenforceable. It reads:

Section 4.
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

It would seem that illegal immigration in great numbers is a form of foreign invasion and that the federal government has an obligation which it is not meeting. The philosophical question is whether or not the failure to fulfill an obligation forecloses a protected party from defending itself. Does the existence of the police prevent an individual from acting to defend one's property?

1 comment:

Ira Glickstein said...

Thanks Joel for this new and very timely Topic.

Reading Article IV, section 4, of the US Constitution (for the first time) I was intrigued by the guarantee to each State "a Republican Form of Government ..." For those of us who are "strict constructionists" that would seem to make the other party unconstitutional :^)

Seriously though, according to FindLaw "...the object of the clause seems clearly to have been more than an authorization for the Federal Government to protect States against foreign invasion or internal insurrection, a power seemingly already conferred in any case. No one can now resurrect the full meaning of the clause and intent which moved the Framers to adopt it, but with the exception of the reliance for a brief period during Reconstruction the authority contained within the confines of the clause has been largely unexplored. ...the Supreme Court established the doctrine that questions arising under this section are political, not judicial, in character ..."

A footnote to the above states: "...More recently, the Court speaking through Justice O'Connor has raised without deciding the possibility that the guarantee clause is justiciable and is a constraint upon Congress' power to regulate the activities of the States. ... The opinions draw support from a powerful argument for utilizing the guarantee clause as a judicially enforceable limit on federal power."[Emphasis added]

Thus, for example, the more recent rulings regarding Section 4 may favor State's rights as against those of the branches of the Federal government.

Joel is therefore correct in citing Section 4 in relation to a State's right (e.g., Arizona) to defend itself against invasion (by illegal immigrants) when the Federal authorities (under both Bush and Obama - my comments ar not intended to be partisan) have failed to do.

On the other hand, the failure of the Federal government with regard to strict enforcement has been a political calculation. Dems, in general, are currying their key Hispanic base and expecting the illegals, when given amnesty, to vote their way. Reps are helping businesses that depend upon low cost, often illegal labor and the effect illegals have in holding down the cost of low-skilled labor.

Since Joel brought it up, here are my thoughts on the recent injunction against key parts of the Arizona law. The judge did NOT strike down the parts about: a) a ban on sanctuary cities, b) making it illegal to hire day laborers if such activity impedes the flow of traffic, and c) sanctions for employers who hire illegal immigrants. It is still legal for Arizona police to cooperate and turn suspected illegals over to the Feds - all the injunction does is to cancel the requirement for them to do so. The appeal process and likely Supreme Court review will continue to energize the anti-illegal-immigration base just in time for the 2010 elections. Five states are actively working on Arizona-like laws and a couple dozen others are thinking about it.

Ira Glickstein