The standoff at Eagle Park creates a special moment known in the ed biz as a “teachable moment” regarding the Constitution’s doctrine of federalism.
The chief point to grasp here is that 13 independent sovereign states created and adopted the US Constitution. They were already associated as confederate sovereignties under the Articles of Confederation, and each was determined to retain its sovereignty notwithstanding the Constitution’s ratification.
The peculiar phrasing of the preamble to the Constitution, while technically accurate, may be seriously misleading. The preamble’s phrasing—“We the People of the United States…do ordain and establish this Constitution for the United States of America”—cannot help but give the impression that there was a plebiscite undertaken in adopting the Constitution. But that is not so.
There was no plebiscite. To the contrary, the Constitution was adopted—“ratified” is the term normally employed—by the states precisely as required in Art VII of the Constitution itself:
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
No doubt, under the American doctrine of popular sovereignty, a state convention to ratify the Constitution can appropriately be viewed as the act of the state sovereign (the people) through their state as agent. Nevertheless, it would have been equally accurate and less misleading to have phrased the preamble as We the States of the United States…do ordain and establish this Constitution for the United States of America.
Image Andrea Widburg using a YouTube image.
The 13 states adopted the Constitution on September 17, 1788, following New Hampshire’s June 21, 1788, ratification convention. So, in the span of just13 years, the 13 sisters by the sea coursed from British Colony (Battle of Lexington/Concord, April 18, 1775) to Sovereign State (Declaration of Independence, July 4, 1776) to Confederation of Sovereignties (Articles of Confederation, March 1, 1781) to Federation of Sovereignties (Ratification by New Hampshire, June 21, 1788).
The Constitution’s federalism doctrine is briefly and somewhat awkwardly described in the Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The same document can be restated this way: Every State of the United States is a sovereign state possessing all powers of a sovereign state except as otherwise provided by a state or the federal constitution, and the United States of America is a sovereign state possessing no powers whatever except those powers granted it in the United States Constitution, either expressly or by necessary implication.
The 10th Amendment’s meaning can be understood this way: Imagine someone asking, “Does a state have power X?” The answer is “Yes, unless the state or federal constitution provides otherwise.” The corollary question is, “Does the United States have power X?” The answer is “No, unless the federal Constitution grants that power.”
With federalism now under our belt, let’s cop a gander specifically at Texas’s conduct at Eagle Pass.
Article IV, Sec. 4 of the US Constitution provides:
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.
Let us accept as true, based on publicly available facts, that (a) The State of Texas is under invasion across its southern border, and (b) the US federal government invites and supports this invasion.
Applying the above-stated constitutional principle to these facts means that the US federal government is in open rebellion against the U.S. Constitution.
Moreover, under the common legal principle qui facit per alia facit pe se (“He who acts through another, acts for himself”), the federal government is itself invading the State of Texas by using illegal aliens and, therefore, is acting treasonously.
We now turn to the delicate question of whether Texas has the right to reject the federal invasion.
Article 1, Sec. 10, Clause 3 of the Constitution states in relevant part:
No State shall, without the Consent of Congress…engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Thus, the question becomes: Does the sovereign State of Texas possess the legal right to repel the migrant invasion over its Mexican border? As the Attorney General of Arizona extensively and credibly argued, the answer is a resounding YES!
There is an equally delicate follow-up question that needs to be addressed. Many people are proposing that Texas should secede from the Union. That’s a terrible idea, dividing those who oppose the federal government’s lawlessness and raising a plethora of issues beyond those presently faced. Instead of fleeing from federal treason, Texas should spearhead a campaign to repulse he federal treason and drain the federal swamp. Possession, not secession!
https://www.americanthinker.com/blog/2024/01/at_eagle_pass_the_constitutions_history_and_text_completely_support_texass_stand.html
https://www.thegatewaypundit.com/2024/01/fox-newss-dana-perino-slams-biden-after-he/
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