A Constitutional Comedy of Errors Will Lead to Constitutional Tragedy

Professor John Yoo, constitutional law professor at Berkeley and Senior Fellow at the American Enterprise Institute, has published a remarkable article in National Review. He contends that Texas Governor Greg Abbot’s November 16 letter upbraiding Joe Biden for refusing to honor the Constitution’s guarantee that the federal government shall protect the states against the invasion of illegal border crossers is a misrepresentation of the Constitution because no actual “invasion” has taken place. In fact, says Yoo, the Texas governor’s plan to use the Texas National Guard to prevent illegal aliens from entering Texas is itself a violation of the Constitution, because immigration and border control fall within the plenary power of the federal government even if the Biden Administration refuses to exercise this exclusive power.

Under the Constitution, Congress is granted power to “establish an uniform Rule of Naturalization.” By extension, this means that Congress has the power to determine, as an aspect of the nation’s sovereignty, the conditions for entry into the United States. More than a century ago—just when the progressive dream of the world homogeneous state was emerging—the Supreme Court announced what was considered the settled sense of the matter when it remarked that “it is an accepted maxim of international sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.” It is important to note that the Court here emphasized that border control is not only an intrinsic aspect of sovereignty, but “essential to self-preservation.” 

Under progressivism, “self-preservation” is no longer considered a rational goal; it is subordinate to diversity and openness. We hear it every day: “diversity is our strength.” Open borders, the invitation to the nations of the world, is the key to increasing diversity without any consideration of “self-preservation.” Terrorists and criminals of all stripes have rushed to fill the diversity void.

Professor Yoo’s constitutional exegesis would make the Constitution a “suicide pact.” The strict interpretation of one word—an interpretation which is highly questionable—means that the Constitution may be sacrificed on the altar of false original intent jurisprudence.

Professor Yoo admits (how could he do otherwise?) that “President Biden undoubtedly bears heavy responsibility” for the failure to control the border. Indeed, he “has allowed the southern border to fall into chaos, with a million illegal aliens [it’s actually 3 million] crossing into the United States in the past year. This record-breaking surge has imposed heavy cost on communities in Texas, Arizona, and California, created a route for the trafficking of people and drugs, and led to thousands of deaths of migrants at the crossings.”

No mention here of the many deaths of American citizens, those who have been killed or murdered by illegal immigrants, or who have been raped, tortured, defrauded, victimized by identity theft, extorted, or terrorized by MS13 (many of these crimes have been committed by illegal aliens who had been previously deported, some multiple times). Nor does Yoo mention the massive drug trafficking that takes place across the border and how many Americans are killed by fentanyl as a result. Moreover, known terrorists have been caught trying to cross the border and other terrorists are known to have crossed without having been apprehended. It is impossible to argue that this “chaos at the border” does not constitute an imminent national security emergency.

A Deliberate Progressive Policy Permitting Invasion

We must understand that the open border is a deliberate policy of the Biden Administration, and the resultant crime is owing to that policy. Millions of illegal aliens crossing the border may not be an invasion in Professor Yoo’s questionable understanding of original intent, but it is certainly an invasion in the only sense that matters—it is real, and it has real life consequences.

“An originalist interpretation of ‘invasion’,” our professor assures us “would exclude the border crisis.” The clause in the Constitution protects states against an invasion that is “imminent danger,” and the “border crisis, awful as it is, does not create an imminent danger.” Drug cartels, we are told, do not seek to aggrandize territory; they merely seek “profit, not political objectives.” But, of course, it is obvious to anyone with the least common sense that drug cartel networks as active throughout the entire United States as is the MS 13 terrorist network, are a danger in the sense the Constitution means it.

Yoo argues that the framers’ understanding was that an “invasion” occurred only when sovereign nations crossed borders using military force for the purpose of aggrandizing territory; pirates and Indians might be included as well, he adds. Leaving aside the question of Indians who may have represented sovereign nations, how can cartels be distinguished from pirates, who sought profits but not territory? Did they always act as the agents of sovereign governments or were most pirates “freebooters”? In any case, it is true that the cartels and MS 13 and the Mexican mafia, among others, do not hold territory by military force nor do these groups act directly as the agents of a sovereign government. But how is this not an invasion? Many inner cities are governed by heavily armed cartels just as effectively as they would be by military forces.

Undoubtedly the most absurd of Professor Yoo’s claims is that designating the “chaos” at the border with its influx of “millions” of illegal border crossers as an “invasion” would be an invitation for extremist groups to engage in violence against the invaders as self-styled militias defending the country against these invaders. 

Professor Yoo makes another unwarranted leap of imagination: he claims that Texas might be so emboldened by its success in designating the illegal immigrant implosion as an “invasion” that it might invoke the “declare war” provision of the Constitution to “engage in war” against the “invaders.” This, of course, would be a clear violation of the Constitution as only Congress has the power to declare war. But one constitutional violation can easily lead to another, and this one would allow Texas to engage in war, triggering the “laws of war.” As Professor Yoo argues, “Texas might consider any illegal alien crossing the border an enemy combatant, subject to targeting by National Guard units. If aliens tried to escape capture, Texas could resort to the use of force to stop them.” Like the aforementioned extremists, the Texas National Guard might understand the “invasion” designation as “open season” on illegal aliens.

What Yoo ignores is that the Constitution commands (both the Second and 14th amendments) militias to be “well-regulated.” This means, at a very minimum, every member of the Texas National Guard—its state militia—will have been trained in strict fire discipline, which is part of all American military training. Every member of the Texas militia will know that the mere presence of an illegal alien, fleeing or otherwise, does not present an imminent danger that allows the use of force or the use of any weapon for self-defense. What Professor Yoo presents is reckless speculation that is utterly fanciful and cannot be credited as part of any reasonable argument. It is another example of the extent to which hysteria has driven reasoned argument from public discourse.

Let us not quibble about the word “invasion” or we will lose sight of what is dangerous and what is truly imminent. The framers of the Constitution were, above all, prudent statesmen (what Aristotle called phronimoi and the Federalist called “enlightened statesmen”), which meant that they possessed practical wisdom, able to adapt the principles of natural right and natural law to various circumstances.

I seriously question whether Professor Yoo understands original intent jurisprudence as he claims. In my recent book, The United States in Crisis: Citizenship, Immigration, and the Nation State, I demonstrated in exquisite detail that Professor Yoo’s claim that the framers of the 14th amendment based the citizenship clause on the English common law was refuted even by the most casual reading of the congressional debates. Birthright citizenship was explicitly rejected by its architects and its principal supporters, none of whom ever mentions the common law or even deigns to mention Blackstone as an authority. Indeed, birthright citizenship had been previously rejected by the Civil Right Act of 1866 which everyone accurately admits, the framers of the 14th amendment made their explicit purpose to “constitutionalize.”

The critical defect in Yoo’s attempt to recover the original intent of the framers of the Constitution was that he ignored a simple principle that the American founders themselves insisted on (as did the framers of the 14th amendment): the Constitution must always be read in the light of the principles of the Declaration of Independence, and the Declaration unequivocally rejected the common law as the basis for American citizenship, substituting consent and social compact in its stead.

When the Declaration declaimed that the American people were henceforth “Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved,” everyone knew that this was a rejection of the common law which required “perpetual allegiance” which could only be dissolved with the king’s permission. The king, of course, did not give his permission and he tried to prevent the dissolution by waging war against the American people. King George was finally forced to acknowledge the dissolution—and the independence of America as a sovereign nation not owing “perpetual allegiance” under the common law—in the Treaty of Paris which ended the American Revolution.

In a revolution that proved to be a world-historical event, citizenship was based on the consent of the governed. No longer were subjects (the common law never mentions “citizens”) born into perpetual allegiance. Under the feudal notion of “subjectship,” whoever was born within the protection of the king owed “a perpetual debt of gratitude,” which in the common law was known as “perpetual allegiance” to the king. The Declaration abolished this feudal system and established consent as the basis of citizenship; consent was derived from free choice, not the accident of birth, and consent was based on the sovereignty of the people.

It was acknowledged by the founding generation that the principles of the Declaration supplied the ends to which the Constitution served as the means to accomplish those ends. This was made clear in Madison’s statement in the Federalist numbers 39 and 40. This was also the central theme of Abraham Lincoln’s politics and jurisprudence. Without the Declaration, the Constitution is merely process without purpose, a process for making democratic decisions, but in a manner wholly indifferent to the results.

The Declaration posits the end and purpose of government, not only as the protection of the natural rights of the people who consent to be governed, but in general, the “safety and happiness” of the people. All legitimate government—its “just powers”—are derived from the sovereignty of the people. The “consent of the governed” is required because of the “self-evident truth” that “all men are created equal.” Equality and consent are reciprocal principles. The sovereign people creates government, delegates its powers to be used for the benefit of the people, and sets the limits and conditions under which government may act. This was specified in the Constitution, under the authority of the social compact principles of the Declaration. 

In other words, the sovereignty of the people can never be ceded; it always remains with the people and its ultimate expression is the right of revolution, the power to “alter or abolish” government when it refuses or is unable to secure the rights and liberties—the “safety and happiness”—of the people. The people can create a new government, if it so chooses, that it believes is better calculated to secure its safety and happiness. The Declaration specifies that the right to “alter or abolish” government is not only a right but a duty as well, to be exercised prudently or wisely because of the gravity attached to the alteration or abolition of organic law.

Undermining the Sovereignty of the American People

The Biden Administration has deliberately undermined the nation’s sovereignty by effectively ordering open borders and extending an open invitation to the world. Biden has also administratively erased the distinction between citizens and aliens—indeed expressing a policy preference for aliens over citizens.

The nation today is on the brink of full-scale anarchy, and anarchy is actively promoted by the Biden Administration. Defunding the police is a constant refrain of Biden and his party, although he and his minions deny it when politically expedient. Large cities are overrun by crime and random violence, and crime and violence are rapidly spreading to suburbs and rural communities. Police forces are understaffed and the progressive elites have had considerable success in defunding law enforcement. Despite aggressive denials that defy common sense and crime statistics, crime has increased under progressive reforms. Increase in inner city crime provoked by these progressive reforms, by all accounts, has harmed blacks and other minorities who are exposed and defenseless without adequate police protection, and who do not wish to have the police removed from their neighborhoods.

Gun sales are skyrocketing because citizens don’t feel safe. When government is unable or unwilling to protect the lives of citizens—and some urban areas resemble the state of nature—individual citizens have the right to assume responsibility for the protection of their own lives. In the state of nature, individuals can avail themselves of all the means available to them, including the use of weapons, registered or not, to protect life and liberty. This is a clear dictate of the “law of Nature and Nature’s God” which rests at the very foundation of the American regime. The right to “keep and bear arms” is simply an aspect of the “right of revolution” which is guaranteed to the people in the Declaration of Independence. If the people (as individuals and communities) possess the right of revolution, then they necessarily possess the means to that end, the right to keep and bear arms, and no state or federal regulation can put a burden on the means that substantially defeats the end. I believe that this is the logical reach of the Supreme Court’s decision in New York State Rifle and Pistol Association v. Bruen (2022)

States have always had primary responsibility in the Constitution’s federal system of guaranteeing the safety, health, welfare, and happiness of the people of the states—the police powers. As with individual citizens, when the federal government is either unwilling or unable (in the case of the Biden Administration it is unwillingness) to protect the safety and happiness of the people, the right of self-protection devolves back to the people, either through their states or as individuals. As in the state of nature, the individual can use all measures available to protect life, liberty, and property. There are no assignable limits to what an individual can do by the law of nature in the state of nature to preserve natural rights. So too can communities—including states—use all the means of war for protection of its citizens when the federal government abandons its responsibilities. This is a dictate of the law of nature which, as we have seen, is the first law of the Constitution itself.

Only a sovereign nation that actively protects the privileges and immunities of its citizens can sustain the rights of its citizens and the rule of law. Any regime that actively works to destroy or even blur the distinction between citizens and aliens is undermining the nation’s sovereignty and the rule of law. The Biden Administration attacks the idea of sovereignty and the nation state, the only form of government that has ever sustained constitutional government. The administration is actively promoting anarchy by refusing to enforce the border, and by actively dividing races through so-called racial equity measures, and by weaponizing the Justice Department to make political prosecutions—the greatest threat to the rule of law.

Every clear thinker knows that anarchy is unsustainable and always ends in despotism. Every would-be despot also knows that the easiest road to despotism is by promoting anarchy and then promising to relieve the people from the ensuing chaos. History is replete with such examples, many of them contemporary.

The danger facing the nation is imminent! The pressing question is not whether the border crisis meets the constitutional definition of “invasion” but whether the Constitution will survive the widespread anarchy that exists throughout the nation. It is a matter of original intent that the survival of the Constitution is the first law of the Constitution itself. What the nation faces is a constitutional crisis that requires what the founders called a “resort to first principles,” those principles that animated the Constitution. This is a duty that the American people have when they see that the government is no longer willing to perform its constitutional obligations to secure the “safety and happiness” of the people. This is something the Biden Administration clearly demonstrates it is unwilling to do. Surely Biden knows—or the ideological progressives who advise him know—that despotism is the only alternative to anarchy. I am surprised that Professor Yoo doesn’t know this and believes that “parchment barriers” built from an arcane definition of “invasion” that certainly would be rejected today by “enlightened statesmen” might stem the tide that is crashing down around us.

Edward J. Erler is emeritus professor of political science and, at least according to the apparent definitions of the Biden Administration, a confessed domestic terrorist because of his support of the principles of the Declaration of Independence. Assistant Attorney General Matthew Olsen described the principal mission of the domestic terrorism unit at the Justice Department as the investigation of individuals and groups harboring “anti-government and anti-authority ideologies.” The Declaration, of course, is not an “ideology,” but a “self-evident truth.” General Olsen, of course, is not expected to appreciate such subtleties. It is undeniably true, however, that the Declaration reserves to the people the right “to alter or abolish government” when it fails to protect the “safety and happiness of the people.” Can the entire people be domestic terrorists?

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