Tom Davis / December 17, 2010

Interpreting the Constitution

All too frequently, we hear or read something regarding interpretation of the constitution. Since these references are to the Constitution of the United States, I beg to differ. In fact, I take umbrage at the remark and to its inferences. Some of the greatest minds among our founding fathers grappled endlessly with the language of the constitution.

One of the greatest minds to ever study and make commentary on our constitution was Mr. Justice Story (Joseph Story, LL.D) who was responsible for the most complete commentary ever written detailing our constitution. I find one comment particularly enlightening, “Nothing but the text itself was adopted by the people. And it would certainly be a most extravagant doctrine to give to any commentary then made, and, a fortiori, to any commentary since made under a very different posture of feeling and opinion, an authority, which should operate an absolute limit upon the text, or should supersede its natural and just interpretation.”

Justice Story was quite adamant that the constitution spoke for itself in plain language, understandable to all who were reasonably educated. This was made perfectly clear in his commentaries in Chapter V, Rules of Interpretation, § 397 where he wrote, “IN our future commentaries upon the constitution we shall treat it, then, as it is denominated in the instrument itself, as a CONSTITUTION of government, ordained and established by the people of the United States for themselves and their posterity. They have declared it the supreme law of the land. They have made it a limited government. They have defined its authority. They have restrained it to the exercise of certain powers, and reserved all others to the states or to the people. It is a popular government. Those who administer it are responsible to the people. It is as popular, and Just as much emanating from the people, as the state governments. It is created for one purpose; the state governments for another. It may be altered, and amended, and abolished at the will of the people. In short, it was made by the people, made for the people, and is responsible to the people.”

As one who is reasonably educated, I find it preposterous that two self-proclaimed Constitutional Lawyers have such trouble understanding our constitution. The most egregious example of that fact was, shortly after Governor Jan Brewer of Arizonan signed SB 1070 into law on April 23, 2010, these two experts quickly denounced Governor Brewer’s action as Unconstitutional. Neither had time to research the issue, yet both were able to level unsupported accusations against a state official.

These actions either instigated or at least supported, National Coalition of Latino Clergy and Christian Leaders and one Tucson, Arizona police officer, Martin Escobar to file the first suits against SB 1070 on April 29, 2010. The coalition’s filing argued that SB 1070 usurped federal responsibilities under the Supremacy Clause, Escobar in his suit proposed that there were no race-neutral criteria available to him to suspect that a person was an illegal immigrant. Most litigants noticeably have a Latino bias.

A Phoenix police officer, David Salgado, brought his own suit alleging that the law would force him to violate the rights of Hispanics. Several organizations and two cities followed with actions of their own: Mexican American Legal Defense and Education Fund, the ACLU, The NAACP and the Cities of Tucson and Flagstaff.

The Government of Mexico joined the ACLU and others claiming the new law was unconstitutional, would lead to unlawful discrimination against Mexican citizens and would damage bilateral relations between the two nations. Additionally such noted individuals as Erwin Chemerinsky, a constitutional scholar and dean of the University of California, Irvine School of Law say that “The law is clearly pre-empted by federal law under Supreme Court precedents.”

On July 6, 2010 the Department of Justice filed a lawsuit against the State of Arizona in the U.S. District Court for the District of Arizona. The suit asked for an injunction against SB 1070 because it interfered with immigration regulations “exclusively vested in the federal government.”

One need look no further than the U.S. Constitution; Article I, Section 10, paragraph 3, which states in very clear English: “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with any other State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay”

Question: Has Arizona been invaded? Undoubtedly.
Is Arizona in imminent danger? Unequivocally, Yes!

As will not admit of delay. That is a judgment call by the chief executive of the state in which the invasion took place. Common sense and the Constitution seem to dictate that the federal government has abdicated and/or overstepped its proper role.

SB 1070 states as follows:

Be it enacted by the Legislature of the State of Arizona:
Section 1. Intent
The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.

It is obvious from the very first page of SB 1070 that Arizona was taking appropriate action to rid itself of an invader, the body of illegal aliens. The federal government has for years been delinquent in its duty to enforce immigration laws of the United States. One provision of TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part VII > § 1304 Section (e) states:

Personal possession of registration or receipt card; penalties
Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.

SB 1070 simply reiterated this requirement, yet an overzealous, liberal activist or unqualified government functionary, Judge Susan Bolton, held this particular portion of SB 1070 to be unenforceable. She obviously fails to understand US Code or cares nothing about it.

Mr. Justice Story would likely have been incensed at this blatant attack on the constitution and the abject failure of government to act properly relative to one of the States of this Union.

Dr. Thomas E. Davis, Colonel, USA (ret)
[email protected]

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