Why Texas Should Follow the Father of the Constitution by Ignoring SCOTUS to Secure Its Border
Although federal authorities stand against them, the people of Texas still have the Father of the Constitution on their side.
In a 5-4 decision handed down Monday, the Supreme Court ruled that the Biden administration may remove approximately 30 miles of razor wire along the Rio Grande.
Texas authorities had installed the wire to prevent migrants from illegally crossing the state’s border with Mexico.
Shocking video footage has shown Border Patrol agents cutting the wire and even fist-bumping illegal aliens as they passed through. The dispute over the wire — and in a larger sense over authority — ended up in federal court.
Alas, Chief Justice John Roberts and Associate Justice Amy Coney Barrett joined the court’s three liberals — Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson — in upholding a terrible precedent.
In Arizona v. United States (2012), SCOTUS ruled parts of an Arizona immigration law unconstitutional because federal immigration laws took precedence.
“The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens,” Justice Anthony Kennedy wrote in the opinion of the court.
That “broad, undoubted power,” however, comes not from the Constitution’s text but from the court’s interpretation of it.
Article I, Section 8 authorizes Congress to “establish an uniform Rule of Naturalization.” Meanwhile, Article IV, Section 4 requires the federal government to “protect” the states “against Invasion.”
Otherwise, the Constitution is silent on the question of immigration.
Nonetheless, from these threadbare clauses comes the federal government’s “broad, undoubted power,” according to SCOTUS.
But does such power rightly exist?
The Father of the Constitution
Against the Supreme Court’s authority, we must consider that of James Madison.
Widely regarded as the “Father of the Constitution,” Madison helped shape discussions at the Constitutional Convention of 1787 and then at the Virginia ratifying convention the following year. He also wrote the Bill of Rights.
More important, the world has produced no keener constitutional mind. At the risk of hyperbole, his lone voice should outweigh the combined opinions of every Supreme Court justice in U.S. history.
Madison made one of his greatest contributions to American constitutionalism during a period of political crisis.
In 1798, a Federalist Party-dominated Congress responded to fears of French Revolution-inspired radicalism by passing the Alien and Sedition Acts.
While the Sedition Act has achieved lasting infamy for its brazen assault on the First Amendment, it is the Alien Act to which we must turn to understand Madison’s relevant constitutional thinking.
Under the Alien Act, the president of the United States had broad, discretionary authority to “order all such aliens as he shall judge dangerous to the peace and safety of the United States … to depart out of the territory of the United States.”
This law targeted French and Irish nationals who resided in the U.S. Federalists regarded Great Britain as the world’s bulwark against French radicalism. Thus, they wanted to root out foreign nationals whom they deemed not only friendly to France but hostile to Britain.
Deeply concerned over the expansion of executive power and of federal authority in general, Madison penned a protest that the Virginia state legislature formally adopted on Dec. 21, 1798. That protest became known to history as the Virginia Resolutions.
In those resolutions, Madison denounced the Alien and Sedition Acts as “palpable and alarming infractions of the constitution.”
With this in mind, Madison declared that “in case of a deliberate, palpable and dangerous exercise of other powers not granted” by the Constitution, “the states who are parties there-to have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”
The Virginia Resolutions had only six substantive paragraphs, leaving their meanings susceptible to distortion.
Thus, little more than a year later, Madison elaborated on the resolutions in a lengthy treatise that one eminent historian has called “one of the most important documents of the 1790s.” It has since become known simply as the Report of 1800.
This document offers Texas substantial support for a confident dismissal of both SCOTUS and the Biden administration.
The Report of 1800
To begin, Madison made it clear that states cannot and must not “interpose” on ordinary occasions. In other words, outside of extreme circumstances, the federal government must operate without state interference.
“The resolution,” he wrote, “expressly [refers] to cases of a deliberate, palpable and dangerous nature. It specifies the object of the interposition which it contemplates, to be solely that of arresting the progress of the evil of usurpation, and of maintaining the authorities, rights and liberties appertaining to the states.”
Therein lay the key: States may interpose only in “cases of a deliberate, palpable and dangerous nature.”
This was critical. It did not mean that states could override federal law whenever they wished. It meant that they could do so only when the federal government clearly and deliberately trampled the Constitution.
One might ask, of course, why not rely on the federal courts?
Madison’s Virginia Resolutions assumed that the courts’ connivance with federal usurpers had closed off that particular remedy.
“The resolution supposes that … the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the constitution,” he wrote. Indeed, SCOTUS can go “beyond” the Constitution and find things like “broad, undoubted power.”
Furthermore, according to Madison, federal courts could never have absolute discretion to determine the Constitution’s meaning. After all, the sovereign people created the courts when they acted through their state ratifying conventions.
“On any other hypothesis, the delegation of judicial power, would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very constitution, which all were instituted to preserve,” he wrote.
Madison’s expanded protest against the Alien Act also affords Texas a firm constitutional standing.
“One argument offered in justification of this power exercised over aliens, is, that the admission of them into the country being of favor not of right, the favor is at all times revokable,” he observed.
At first glance, it might appear as if Madison stood poised to challenge the government’s power to remove aliens. But he did not.
“To this argument it might be answered, that allowing the truth of the inference, it would be no proof of what is required. A question would still occur, whether the constitution had vested the discretionary power of admitting aliens in the federal government or in the state governments,” he added.
In other words, Madison acknowledged that governments may remove aliens. But he also asked whether federal or state governments may carry out those removals.
Thus, the Father of the Constitution saw nowhere in that document the purported “broad, undoubted power” of the Supreme Court’s imagination.
So how did U.S. courts become so corrupted as to draw such unwarranted inferences?
Madison explained this, too. Some Federalists, he observed, had tried to justify the Sedition Act in particular by citing common law.
In the English tradition, common law derived not from written statutes but from — wait for it — judicial precedents.
The U.S. Constitution, however, rendered such precedents irrelevant, for the fundamental law made clear the sovereign people’s wishes.
In other words, by privileging judicial precedent, the Supreme Court has adopted a practice that Madison regarded as anathema to a written constitution.
On the whole, therefore, Texas might not win in federal court. In this case of “deliberate, palpable and dangerous” federal subversion, however, it has Madison’s authority on its side.
The Lone Star State should act on it by ignoring SCOTUS, resisting the tyrannical Biden administration and securing its border.
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