Invasion or Evasion? Crisis at the Border is a Political, not a Constitutional Problem

Below is my column in the Hill on the effort to declare an “invasion” along the Texas border to allow the state to take greater control along the border to stem the flow of illegal immigrants. This week, Texas Gov. Greg Abbott signed an order allowing Texas law enforcement to return illegal immigrants apprehended in the state back to the U.S. border. The Biden Administration has already indicated that it will oppose such efforts. Whether such state enforcement is constitutional will be hashed out in the courts in light of the 2012 decision in Arizona v. United States.  Texas can legitimately raise the obligations of the federal government to protect the border under Article IV and even refer to this influx as an invasion in the colloquial sense. However, the argument that it constitutes an invasion in the constitutional sense would not be a compelling argument in federal court.

Here is the column:

“We’re being invaded.” Those words from Kinney County, Texas, Judge Tully Shahan this week were echoed by officials in three Texas counties, urging Gov. Greg Abbott (R) to declare an “invasion” of the state by illegal immigrants.

With 1.06 million encounters in just the first half of the 2022 fiscal year, it is hardly hyperbole. However, these officials are seeking a constitutional — not just a political — declaration. They are claiming an actual invasion in order to trigger the state’s right to self-defense in the face of inadequate federal enforcement.

Border arrests in May set a record for the country, with 239,416 illegal immigrants apprehended. Thousands of weapons and hundreds of millions of lethal doses of fentanyl have been seized, too, as border states begin to buckle under the rising crime and social-welfare costs.

While some federal border agents seem in open defiance, the Biden administration narrowly prevailed in the Supreme Court to stop the Trump-era “Stay in Mexico” policy, which could further increase these numbers.

From the states’ perspective, this was a deal-breaker. In debating the Constitution after its drafting in 1787, states were assured that ceding authority to a federal government would not only preserve their rights under a federalism system but would guarantee that they would be protected from invasion. That obligation was made plain in Article IV, Section 4, the so-called Guarantee Clause; it states in part that “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.”

Article I, Section 10, Clause 3 of the Constitution bars states from conducting foreign policy or performing other federal duties, including the power to “engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

That language was not the manifestation of a new deal with the states. It was largely taken from the much-maligned Articles of Confederation. Despite wanting to strengthen the powers of a federal government, the Framers incorporated the original recognition that a state can always act in self-defense in the face of an invasion.

What constitutes an “invasion” in a colloquial sense is highly subjective. When Benedict Arnold took 1,600 men over the northern border into Canada in 1775, it was rightfully called an invasion. Yet when millions pour over the southern border, it is called lax enforcement.

The legal difference is obvious. One was an organized national force seeking to take over a country. The other is a collection of people from various nations seeking to join this country. Yet, for border states, the distinction easily can be lost in the costs and the crime associated with runaway illegal immigration.

It is clear that the Constitution’s references to “invasion” meant an organized foreign army. When the Constitution was ratified, the federal government had only a small regular army, and border states were legitimately concerned about an invasion by hostile foreign powers or their surrogates.

The failure at our border is a problem of competency rather than the Constitution. If “invasion” can be defined this broadly, any lack of border security could be defined as an invasion, from illegal drug imports to illegal gang activity.

In some respects, states are in a worse situation than when they ratified the Constitution. At that time, state legislatures controlled the composition of the U.S. Senate, which made senators far more responsive to state interests. That changed in 1913 with the direct election of senators under the 17th Amendment. States also once controlled most of the country’s tax revenue, giving them considerable power over the federal government. That ended with 16th Amendment giving Congress the right to impose income taxes.

On immigration, however, it became more difficult just ten years ago with the Supreme Court’s decision in Arizona v. United States, reaffirming federal authority to control borders and dictate immigration enforcement. During the Obama administration, states sought to enforce immigration laws after they claimed a lack of federal enforcement. While the state won the right to confirm immigration status in some cases, the Obama administration prevailed overall in swatting back state efforts to increase enforcement along the border.

Now, Arizona is trying again with a commitment of $564 million to secure its southern border, including border fence construction and improved technology, and plans to build a “virtual border wall.” It is not clear if this renewed effort will succeed in light of the 2012 decision, particularly given the absence of key details on enforcement.

Other options are equally daunting for states.

President Biden could reverse course and openly enlist states to expand enforcement; that seems unlikely given the increasingly hostile relationship between the administration and border states.

Or states could pressure Congress to change immigration laws to allow for greater state enforcement — but there are constitutional barriers to forcing a president to enforce particular laws under our separation of powers. Indeed, in this month’s ruling in Biden v. Texas, the court voted 5-4 that the administration had discretion not to maintain the Stay in Mexico policy even if it meant a greater infusion of undocumented persons. Justice Alito wrote for the dissenting justices in declaring that the Biden administration is ignoring the current law and “this practice violates the clear terms of the law, but the court looks the other way.” These justices do not view the border crisis as an invasion as much as an evasion of federal law.

Rather than trying to force President Biden to enforce these laws, Congress could seek to allow states to do so. Much of the 2012 ruling against Arizona was based on the preemption of state laws by federal immigration laws; the court ruled that states cannot create “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Congress, however, could change those purposes and objectives by expressly allowing for state enforcement. Moreover, it can use the power of the purse to force a president to do so.

Otherwise, courts will view this as a political question to be addressed in the polling place, including the upcoming midterm elections. The public appears to transcend party lines in its opposition to the border crisis. A recent poll shows Biden’s approval on immigration at just 32 percent; even a majority of Latinos opposed the administration’s effort to dispense with Title 42 and the Stay in Mexico policy.

It is easy to understand the frustration of states which feel they are victims of a bait-and-switch from the 18th century. Yet if there is a case to be made for self-help, it is not to the courts but to the voters.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

176 thoughts on “Invasion or Evasion? Crisis at the Border is a Political, not a Constitutional Problem”

  1. So the Presidential Oath to uphold our laws and defend the constitution is worthless? Ignoring the law, failure to enforce the law is legal? That is pathetic and disgusting.

    1. A concerted, planned, politically supported, illegal, cross border mass incursion of foreign nationals intent on grasping for tax payer funded benefits, tax payer funds, tax payer property and wealth, economic value and, while not all, many also kill, assault, rape or otherwise cause bodily, mental and ( a favorite demokkkrat attack) “emotional” harm to US citizens and legal immigrants and legal residents.

      Such incursions also involve transportation of illegal drugs in sufficient quantity to destroy millions of lives lives and kill hundreds of thousands of US citizens.

      The overwhelming demographic of these foreign nationals are military age men.
      The scouts and trailblazers often carry and use firearms in furtherance of advancing their fellows into the US.
      There are also those foreign nationals in support roles within the US that engage in the transportation and supporting logistics of ingress of millions of foreign nationals dispersed throughout the US.

      Calling this foreign operation anything other than an invasion is orwellian newspeak at it’s worst.
      Not holding US citizens,, private, government and ngo, liable as traitors giving aid and comfort to foreign nationals invading the US is just another example of the multi-tiered “justice” system where the depth of ones depravity in adhering to the anti-Constitutional, America hating marxist ideology grants more exhaustive impunity.

      The US has laws governing immigration. Flouting those laws, enabling, aiding and abetting massive foreign invasion, resettlement and gifting tax payer funds and funded services to those invading the US, is treason.
      Entering a foreign country, in a coordinated fashion with others, to obtain that country’s wealth and property is an invasion, regardless of the amount of force or prevalence of weapons employed.

      1. Right on point.
        In earlier times, invaders also raped and plundered. This clearly has the markings of an invasion. While the crimes may be different, they are still crimes – including illegally entering the country, for which the penalty is deportation.

  2. The issue of this post is the meaning of “invasion” as used in the Constitution. On that point, it is particularly weak. There is no analysis of the common meaning or it’s historical usage by the framers. You just assume it means an armed invasion by an organized military force, but you give no justification for that assumption. What is happening at the border could be termed an invasion as that word is commonly understood… “enter (a place, situation, or sphere of activity) in large numbers, especially with intrusive effect.” Let’s get a State to declare an invasion and see how the SCOTUS rules. I don’t think this Court would find the current status quo acceptable. The State cannot enforce immigration law and the Feds refuse to, resulting in unimaginable levels of unchecked illegal migration burdening the States with crippling social service obligations.

  3. A political problem. Self inflicted

    See Sri Lanka. They went solar and organic. Promised organic yields just like the dirty chemical way to produce food. But its a lie. They are the example of what the US will become. Food, fuel, energy shortages….In the United States. All for what cause? Elimination of fossil fuels? But no Nuclear Power. Because…..Shut up and starve peasant.

    1. A policeman must maintain the life of a suspect in his jail.

      A policeman cannot terminate the suspect he is the custodian of.

      The suspect is entirely dependent on the policeman for his sustenance and care.

      The suspect cannot leave the jail cell.

      The policemen has a duty to sustain the dependent suspect

      Everyone has a duty in life.

      1. But the policeman has no duty to protect innocent victims.
        See Castle Rock v. Gonzales

    2. SCOTUS did not decide whether a fetus was human.
      Only whether abortion is a constititonal right.

      1. You tell only half the story, so your argument is misleading. The SCOTUS ruling puts the decision of whether a fetus is a human in the hands of individual states, so that is the issue in this case, not the SCOTUS ruling per se. The reason that a pregnant woman can’t drive in an HOV [High Occupancy Vehicle] lane according to state law is because there is one person in the car. But if a state defines a fetus as a person, suddenly there are two people in the car. So, this pregnant mother may be able to drive in an HOV lane if a state has a fetal personhood law. In the tax code, to apply a different context to the same principle, the reason that you can’t claim the baby on your taxes until it’s born is because it is not a person yet. But in a state that has a fetal personhood law, suddenly, you may be able to put that fetus on your tax return, claiming a deduction. This particular HOV case took place in Texas, which defines a fetus as person. Major changes in the law have consequences, many unintended. This case is one of them.

        1. Your entire argument is irrelevant. There is nothing legally significant in your argument.

          Abortion was under STATE jurisdiction by virtue of the 10th Amendment.

          The 1973 Democrat dominated Supreme Court fraudulently TRANSFERRED that state right to Federal jurisdiction in what could only be described as a scam at our highest levels of government.
          The Supreme Court doesn’t have the right to create rights or to divest the states of rights.
          But there is no appeal, thus the scam.

          The only method to create another right is to create a new Constitutional Amendment. Pro abortionists simply don’t want to use the elbow grease to do so and want the easy way out.

          This Supreme Court terminated the scam. Period.

      2. Small correction:
        “Only whether there is a right to abortion in the Federal Constitution”
        SCOTUS averred that the Constitution is silent regarding abortion and is thus an issue reserved to the States and the People.
        It may end up being true that there will be states that enact Amendments, or State Supreme court precedence, that does confer a State right to abortion.

        1. I forgot… the issue pf the personhood of a fetus was not addressed at all.
          There is still the possibility that a future court will answer the question of when “personhood”, and thus citizenship and all rights and immunities, attach.

  4. How could Obama and now Biden have come to the conclusion that an open border is a winning issue for the Democratic Party? Obama helped usher in Trump with his actions on the border and Biden is doing the same things. How could such smart guys keep pushing a losing issue? The question answers itself. Even David Axlerod is trying to tell them to dismantle the circular firing squad but they won’t listen to their own strategist who have brought them to power in past elections. They send their troops to where there is no battles going on. Thankfully.

  5. One of the things that are present during an invasion is the killing of the citizens of the country being invaded. Would 100,000 deaths per year by fentanyl overdose qualify. Some say that the fentanyl is not being carried on the backs of immigrants and they may correct. However, everyone knows that the Border Patrol is undermanned and overloaded with the task of apprehending people entering our nation. They are being distracted from limiting the amount of drugs that enter the country because of having to deal with immigrants. We know this and the cartels know this. Why isn’t the Biden Administration funding border security? 100,000 people dying per year and they just don’t give a damn because getting the vote is more important than dead people. The invasion declaration my not be found in the law but an invasion is nevertheless occurring. When an invasion happens gravestones happen. Gravestones happily provided by Mr. Brandon. Ruthless.

  6. It would seem to me that the 10th Amendment could be raised as an argument for allowing the states to control who resides in their states. The influx of ILLEGAL immigrants into Arizona affect the policies, laws, commerce, and the intra-state quality of life in AZ.

    AZ et al should follow what the Blue States argued when Trump threatened to impose Covid requirements on them: “Eff off – this is an intra state issue and not a federal issue.” If AZ wants to build a wall at the border, or along an aqueduct, interstate, or in the middle of nowhere, the 10th Amendment allows them to do that as long as they meet federal impact requirements.

    If AZ wants to deny unlawful immigrants access to state taxpayer programs for the state’s citizen poor and needy they should do it – and buy them a bus ticket to California where productive law abiding citizens fund the lives of illegal immigrants and provide them with free healthcare.

  7. Invasion as opposed to deliberate subversion–it’s a distinction without a difference.

    1. On June 24, 7 black teenage kids brutally murdered an elderly 73 y/o black man with a cone, unprovoked, just for sheets and giggles, all caught on video. Nothing said by Joe Biden, the liberal press, the talking heads or the elites in Hollywood. More and more underage minors act like animals, threatening all of us, but the decay of the nuclear family is never addressed. America is a very sick patient

      1. Didn’t you know this was a racist white supremecist attack ?
        Could you tell the black kids were actually white supremecists,

        Don’t you know the traffic cone is a well known crypto racist dog whistle ?

  8. Hispanics and Independents reject Biden’s America for ample reasons, of which Biden being a totalitarian type and gutting the Bill of Rights, rank top among them.

    Retired three-star general Gary Volesky suspended after tweet at Jill Biden

    For nearly 50 years, women have had the right to make our own decisions about our bodies. Today, that right was stolen from us,” Biden tweeted.

    “Glad to see you finally know what a woman is,” Volesky said.


    Well stated General Volesky. Your country thanks you for saying what many Hispanics and Independents think.

    1. And then he got suspended because you are NOT allowed to say BOO about this first lady. That is a crime you know./s

  9. Forced to counter resistance to one the most successful initiatives in Biden’s economic recovery plan, Democrats address a threat to the world’s oldest profession:

    ‘A watershed moment’ as the death of a driver on a downtown street brings Baltimore’s long-running squeegee worker debate to a head

  10. It is a Constitutional problem, in that the Founders tricameral approach splits the lawmaking on immigration (exclusive powers given to Congress in Article I, Section 8), and immigration enforcement by the Executive under the “take care” standard.

    We have a 2-fold crisis. First, the Exec Branch, under WH direction, has taken up defacto policy to not enforce illegal immigration law per the 1952 INA. Isn’t that a defiant rejection of the “take care” clause?

    Then, we have one party in Congress who, also pursuing defacto policy, systematically weaken immigration enforcement through underfunding DHS and carving out all kinds of loopholes. An example is the “V” and “U” visas, intended to allow illegals to stay in the country to complete prosecutions of smugglers, rapists, sex traffickers, and slave labor racketeers, now widely abused with the implicit assumption of non-deportation if not caught in serious crime. Another is TPS which has the word “temporary” in it, but whose defacto meaning is anything but.

    So, we off-and-on have a Congress that thwarts law enforcement, and leaves gaping loopholes for illegals to hop through.

    I’d say this is a Constitutional problem. Defacto law, where the “arrangers” can duck accountability for the policy, is a corruption of the lawmaking process — it is a dodge of public accountability. What could be more of a circumvention of the blueprint for governing?

  11. Jonathan: There’s probably another reason for your column–to lend credence to GOP claims that Biden is failing to enforce the law and stop the “invasion” by murders, rapists and drug dealers coming across the border. But facts are stubborn things. Almost all drugs are coming through large ports of entry or by boat and plane. They are not carried in backpacks by migrants. Then there is the stubborn fact that migrants from Mexico or Central America are refugees seeking asylum from drug and political violence and poverty. Even Haitians and Ukrainians are seeking asylum from continuing violence in their countries.

    But the GOP thinks the “invasion” will be a great political issue this year and in 2024 so they are trying to exploit it. And how are they doing this? By peddling the “Great Replacement Theory” (GRT)–you know the one in the manifesto of the shooter in the Buffalo massacre. GRT is the conspiracy theory based on false belief that Jews are behind an attempt to replace white Christians with non-whites. Now GRT is being used by the GOP to put fear in the hearts of white voters that Biden and the Dems are trying to import non-whites to take over American elections. 32 GOP members of Congress repeated the “invasion” language in a letter to Biden only 5 days after the Buffalo shooting. Ted Cruz in the Senate tweeted: “This is an invasion we’re seeing because Joe Biden refuses to enforce the law!” The RNC has also called it an “invasion”. Many GOP officeholders and candidates are echoing this claim in thousands of campaign ads this year. It’s fear mongering and an appeal to bigotry. But it’s working with GOP voters. This kind of racist rhetoric was found only on the fringes of the internet. Now it’s mainstream!

    1. Your fear mongering is fraudulent.
      Polls show Hispanics to have little faith in Biden.
      That eviscerates your racist theory.
      And asylum was not created to alleviate fear of gangs, nor of economic problems. Asylum is for people suffering political persecution, AND VIRTUALLY NO MIGRANTS ARE SUFFERING POLITICAL PERSECUTION.
      Your out of bounds.

      1. I would support broadening our asylum laws.

        But that is something that Congress must do.

        The President must enforce the laws we have – not pretend we have the ones he wants.

        Roberts just formalized the “major questions doctrine”.

        What we need is a “Follow the actual law” doctrine

        1. It would be foolish to broaden asylum laws. Too many countries are fouling their environments, and will soon be wanting environmental refugee admission to places on Earth that have strict enviromental regs (like Europe, Canada, US, Australia). It will involve hundreds of millions.

          Do you want the US to become as croded as Shanghai or Tokyo or Karachi? Do you know how little privacy people there typically have? Who are you to sentence future Americans to that fate, just so you don’t have to feel the discomfort of saying “no” to wannabe immigrants?

          1. Wow! Weird.

            You do know that overall the planet is getting CLEANER not dirtier.
            The whole CAGW nonsense is driven by the fact that the lunatic left is running out of ways to regulate people.

            I would note that the drive towards ever cleaner is a well know consequence of rising standards of living.

            If you want to know foul living – go back to the 15th century. Far less people – living in disgusting conditions

            You sound nearly exactly like the El Paso Eco/xenophobe mass killer that both the left and right were trying to shove on the other.

            Birth rates are dropping accross the world – the drop hit developed countries earlier than undeveloped ones – but even China faces the crisis of negative population growth in the future. Africa is the last place that will peak and we will have a global population of about 11B at that time – after population will start dropping. That is decades away but it is coming. Faster in the west.

            If those on the left think the population bomb was a big deal these should see have bad the population bust will be.

            We are debating abortion and homosexuality, and trans and …. – How do you think those will go when there is a shortage of people ?
            And the same elitists pushing abortion on demand and every flavor of non productive sexuality there is will have changed their tune and be forcing child birth. China is close to that now.

          2. Just to be clear – I am NOT trying to dictate to others exactly what our immigration laws should be.
            I favor more immigration – within the law. I do so based on the well know historical benefits.

            But I do not assume that broad immigration is without cost.
            It will have a variety of effects – both seen and unseen.

            But today we are lawless and that is bad.

    2. Just enforce the immigration laws that we actually have.

      Quit trying to pretend that you can read the minds of Republicans or anyone.

      You can’t.

      Republicans have fought for border security for the past 50 years – atleast.

      Long before GRT was a figment of your imagination.

      I would note that Hispanics and even to a lessor extent blacks are voting Republican in rapidly growing numbers.

      I do not see the GOP seeking to kick out minorities.
      Instead they are embracing them as they become more republican.

      So much for GRT

      But then lets not let FACTS get int he way of a narative that once again seeks to paint all your enemies as racist.

  12. Apparently, the only alternative is to IMPEACH Biden and Harris for intentionally not enforcing the Immigration laws and intentionally failing to protect US citizens and intentionally failing to enforce our laws.
    The intent can be clearly shown by the actions of Biden in withdrawing regulations and Executive Orders without valid reasons which accomplished the goals of the statute and the Constitutional oath and requirement to protect and to enforce our laws.
    Hopefully, the cavalry is on its way this November to accomplish just that.
    Please welcome Kevin McCarthy as your next President.

    1. Why does proving intent matter ?

      The law exists. Everyone in the US government including the president and Vice president swore to uphold the constitution and the laws.

      They have made no effort to do so.

      I do not care if whoever is elected president (or governor) likes the law. They are obligated to enforce the law as it is.

      I do not like many laws – I am not free to pick and choose which I will obey.

      I want enforcement – ESPECIALLY of bad laws, as that is how we build public support to repeal them.

      The president like all of us is free to seek to change the law.
      And I would like to see changes to our immigration laws.
      But until the law is changed it must be enforced.

      This important for many reasons. Why should anyone work to change any law – unless that law will be enforced ?

      Yes, I would like to see the impeachment of Presidents, Governors, DA’s that refuse to enforce the law.

      I will give deference to those who are exercising discretion in specific cases – because a SPECIFIC case is unprosecutable.
      But when laws are broadly ignored by law enforcement – and that includes the president,
      Then those people responsible for enforcing the law who refuse to do so should be removed.

      1. John B Say,

        Your view on enforcement is in absolute terms. On paper it’s what’s supposed to happen, but reality does not allow that. If what you say is to be taken seriously you would hand to be firing every cop who ignored speeding violations, people not using turn signals, jaywalking, etc. You seem to view things in absolutes which tend to conflict with reality of such enforcement. This is why law enforcement from cops to attorney generals have discretion on enforcement. They have to have the flexibility to be able to deal with different circumstances. Specific cases are easy because they can consider unique circumstances and that’s understandable. More broadly like the border issue enforcement is much more complicated because of the various laws and regulations cannot be applied in absolute terms. There are international laws, health and safety, laws on holding facilities, hearings and rights that have to be dealt with. Because of the overwhelming numbers the administration, any administration, requires flexibility and that often means not enforcing certain aspects of the law.

        The Biden administration is doing exactly what any administration has the power to do, have enforcement discretion.

        1. Why doesn’t reality allow that ?

          Don’t just make things up.

          “If what you say is to be taken seriously you would hand to be firing every cop who ignored speeding violations, people not using turn signals, jaywalking, etc. ”

          That is not where I would start – but YES, Absolutely.

          If we truely beleive those laws we should enforce them and obey them and expect to be not merely prosecuted but convicted when we do not.

          Eric Garner died because the police enfirced a stupid law regarding selling loose cigarettes. The error was not with the police, it was with a bad law.

          Regardless, with respect to traffic laws – enforce them rigorously as they are or CHANGE THEM.

          We actually undermine the rule of law when we pass laws and are lax in enforcing them.

          Further I want rigorous enforcement of the law, because that will expose the fact that we have way too many laws.

          As it is self evident that law enforcement can not enforce all the laws we will have to choose what laws are important enough to keep.

          Any law that is not rigorously enforce – should not exist.

          Either the law is necescary or it is not.

          1. “ If what you say is to be taken seriously you would hand to be firing every cop who ignored speeding violations, people not using turn signals, jaywalking, etc. ”

            That is not where I would start – but YES, Absolutely.”

            But, as I said reality doesn’t allow that. It would take every cop in a department stopping nearly every vehicle that went 1mph over the limit. If it’s 30mph it’s 30mph. Not 31. Right?

            If we wanted to enforce the law why not limit cars to the speed limits of certainty areas. Have government mandatory speed limiters controlling speed so nobody violates them. No?

            “ Eric Garner died because the police enfirced a stupid law regarding selling loose cigarettes. The error was not with the police, it was with a bad law.”

            You seem to law enforcement to follow he law like a mindless automaton. No judgement of circumstances needed.

            Garner died because a cop was mindlessly “following procedures” even when he knew it was going too far, but he didn’t care.

            The problem is legislators who constantly create laws that are either unenforceable or unworkable. Those who are supposed to enforce them KNOW and have the ability to decide if enforcement is practical or realistically makes sense. All law enforcement has that flexibility, even judges can exercise discretion when it comes to sentences.

            1. “But, as I said reality doesn’t allow that.”
              A conclusion and not relevant.

              “It would take every cop in a department stopping nearly every vehicle that went 1mph over the limit. If it’s 30mph it’s 30mph. Not 31. Right?”

              If that is the case AND you wish to preserve the law as it is, then hire more cops.

              Though I would note that is NOT reality.

              First I have not required that police arrest everyone violating the law.
              I have insisted they must arrest everyone they SEE violating the law.
              These are not the same. The first requires infinite police and violations of other rights.
              The second only requires the existing police to enforce the actual law when they see it violated.

              Next, if the police started arresting people for going 31 in a 30 zone one of two things would happen quickly.
              People would drive 30mph or less in a 30 zone or public pressure would result in the law being changed.

              NTHSA USED to recomend speedlimits set at the speed in which 98% of people travel below.
              That turned out to be the safest speed for any road. Amazing people have pretty good judgement.

              Set speed limits that way and you will NOT have mass protests or arrests when you enforce them rigorously.

              1. “ First I have not required that police arrest everyone violating the law.
                I have insisted they must arrest everyone they SEE violating the law.”

                Now you’re making exceptions on your initial claim that all law enforcement should be enforcing the law no matter how bad the law is. You HAVE required that everyone be prosecuted, ticketed, jailed, etc. because the law is black or white in your view. I pointed out that reality won’t allow your suggestion to happen. It’s not practical nor realistic. It is however quite totalitarian in nature.

                More cops? That means more taxes and expensive lawsuits. Two things that republicans don’t like. How do they avoid that inconvenience? By letting law enforcement to have the ability to exercise discretion. Presidents and governors do this all the time. Especially the president since he has the power of the pardon.

                1. Presumably you like others can read.

                  Read what I have written.

                  No one needs you to paraphrase me, and what I have written is available to everyone.

                    1. I can, and doing so inaccurately is lying.

                      My posts are available. Cite the, refer to them, quote them in context. Those are all things you can do without significant moral risk.

                      When you make claims about what i say that inaccurately “paraphrase” what i have said – that is moral error – lying.

                2. As you can not read.

                  AGAIN, I am aware that if the current laws were fully enforced that would result in failure.

                  That is not REALITY – it is the specific reality of enforcing EXISTING laws with EXISTING law enforcement today.

                  When you go and drain the swamp – that will expose lots of alligators.
                  That does not make draining the swamp a bad idea.

                  Actually abiding by “the rule of law” will require changes – first enforcing the laws we have, 2nd either increasing the numbers of law enforcement or more reasonably reducing the numbers of laws.

                  It is not my view that the law is black and white it is a REQUIREMENT for the rule of law that we make law as black and white as possible.

                  Any law that that is not clear is “unconstitutionally vague” – several decisions by SCOTUS that the left supports recently have been on the basis of unconstitutional vagueness.

                  It is not possible to obey the law if it is not possible to know what the law is.

                  When the law is unclear that infringes on the liberty of citizens – barring them form doing things that are likely legal, because the law is not clear.

                  It is not my OPINION that the law must be as black and white as possible – it is a constitutional Requirement.

                3. Of course it is practical and realistic.

                  Reduce the number of laws to those that CAN be enforced – that is both practical and realistic.

                4. “More cops? That means more taxes and expensive lawsuits. ”

                  Possibly, If you want the large body of laws we have – that is the price you MUST pay.

                  We are free to decide what laws we want, but we are not free to impose law without paying the cost to enforce it – that is lawlessness.

                  “Two things that republicans don’t like.”
                  When have I said I was a republican ?

                  “How do they avoid that inconvenience? By letting law enforcement to have the ability to exercise discretion.”

                  Yes, our legislators, executives, etc. constantly violate their oaths of office, the requirements of the constitution and the requirements for the rule of law. What is new ?

                  “Presidents and governors do this all the time.”
                  And they are wrong.

                  “Especially the president since he has the power of the pardon.”
                  Correct, a separate power. Had Obama wanted he could have pardoned all illegal immigrants under 16.

                  I do not have a problem with the power to pardon, but Prosecutorial discretion is NOT the same thing. In fact though they MIGHT have similar effects, they have radically different meanings.

                  In fact I would encourage those executives with the power to pardon to do so broadly with respect to bad laws.
                  That is a step towards repealing bad laws.

            2. “If we wanted to enforce the law why not limit cars to the speed limits of certainty areas. Have government mandatory speed limiters controlling speed so nobody violates them. No?”

              Not relevant to the discussion.

              My argument is about the rule of law vs. the rule of man. Not how to better impose bad laws or even which laws are bad and which are not.

              Ultimately I expect self driving cars and much higher speed limits that are enforced by the cars, far fewer accidents and happier people.
              But that is completely independent of this discussion.

              To be clear I expect rigid enforcement of the law to result in backlash in many cases that results in laws being repealed or changed.

              Regardless, government is obligated to enforce the law as it is. People are obligated to obey it as it is. And if we do not like that we should change the law.

              That is what the rule of law requires.

              Traffic laws are an excellent example of destroying the rule of law.

              They are randomly and rarely and arbitrarily enforced – more against the poor and minorities.
              They are disobeyed by pretty much everyone – destroying respect for the law.

            3. With respect to Garner – you are again mindreading – this time the cops.

              Worse you are missing the forest for the trees.

              Pretty much every law you pass will be violated by someone. Worse still it will be violated by someone like Garner that is prepared to consciously or not push things to the limits. Even if the police follow procedures and procedures is determined perfectly – people will die.

              When we are talking about laws against murder or child molesting – most of us can live with that.

              When we are talking about laws against the sale of lose cigarettes – most of us can not.

              Every single law that you write will result in SOMEONE pushing it to the point where the punishment becomes death.
              If you do not understand that – you do not understand humans.

              Garner had lots of opportunities to back down. He didn’t. If he had – then it would have been someone else eventually on a different day.

              But all laws ultimately result in someone’s death.

              When you pas a law you should think about that.

              I would note that there is little difference between the Garner case and the Floyd case – except that the police in Garner faced no discipline and ofc. Chauvin is in jail for decades.

              The point is still the same. Enforcement of the law will always eventually lead to someones death.
              Lawmakers should be sure they think it is worth that before passing laws.

            4. “The problem is legislators who constantly create laws that are either unenforceable or unworkable. ”

              If that is true that will quickly become apparent when the law is rigorously enforced.

              You argument makes mine.

              It is not the role of law enforcement to fix unenforceable or unworkable laws.
              It is the role of courts to void them.
              and the role of legislators to get it right.

              That is the requirements of the rule of law.

              The police are not law makers, or judges, and we do not want them to be.

              What you propose as a solution is exactly what is wrong and why.

              You make the police a law unto themselves.

            5. You have chosen to make this exclusively about police and traffic or similar laws.

              While I do not want discretion there either.

              That is not my focus.
              It is laws like immigration laws, or economic regulations or ….

              There should be no discretion in any law.

              But most of the arguments you make disappear with those laws.

              Immigration law is easy.

              We have specified in the law the criteria for immigration. Meet it your in. Don’t your not.

              I personally would prefer broader criteria. But until I can persuade congress to change the criteria – we follow the law as it is.
              Not what Obama, or Trump, or Biden wishes it was.

              Regardless what we have is a mess.

              Those who get in without complying with the law must live in fear of deportation – if not in this administration, then the next.
              They can not legally get jobs – even in this administration. So in the past 2 years we have about 3M people who can not legally work.
              Yet, you know they are.

              So they are illegally employed – possibly driving legal workers out or to lower wages.

              The employers that hire them are now criminals, too – and the left has no problem raiding employers.

              Regardless we are encouraging people to be criminals.

              Let as few or many people in as we as a country decide. Everyone, no one. something in between.
              But whatever we decide, enforce the law. Those that can not enter legally – are here illegally – they are criminals.
              The people who hire them are criminals.

              If you do not like that – change the law. Not the language.

            6. You are one of those unaware zombies that eat and sleep but don’t think.

              NYC had an immense crime problem. Giuliani and the police chief decided to clean up areas by sectors. Not only were the drug sales and robberies curtailed, but so were pan-handlers, unwanted window wipers, etc. It worked while you were asleep. The murder and assault rate fell.


        2. If enforcing the law leads to conflict with law enforcement – then we need to think about whether we want that law.

          You do not seem to grasp that one of the reasons I WANT the law rigorously enforce, is because that is the best way to get rid of bad laws.

          A law is either of sufficient merit that we are willing to pay the price in terms of the cost of enforcement – including conflict with police, or we should not have that law. Often the latter is the best choice.

          Regardless, government should be as black and white as possible – grey areas belong in private life.

          You may note I am that way throughout all our discussions.

          Repeatedly I argue – the law says what it says. We should not try to stretch or bend it to punish those we do not like.

          The law must be as black and white as possible.

          One narrow meaning, rigidly enforced.
          Black and white, Bright lines. Grey areas belong in private life.

          1. “ If enforcing the law leads to conflict with law enforcement – then we need to think about whether we want that law.

            You do not seem to grasp that one of the reasons I WANT the law rigorously enforce, is because that is the best way to get rid of bad laws.”

            The problem is legislators take too long and the process is so antiquated that doing what you propose is impossible. So flexibility in enforcement is much easier to realistically make them work.

            No law no matter how black and white they have been is ever black and white. Even in the Bible you have that grey area every strict enforcer relies on when. THEY have to follow it.

            1. “The problem is legislators take too long and the process is so antiquated”

              That was a deliberate feature in our system of government that I am all for.
              So we will end up with far less laws. Lets celebrate!

              “that doing what you propose is impossible.”
              No it is not.
              What is not possible is having a nation with far too many laws to enforce.
              Changing that is good not bad.

              “So flexibility in enforcement is much easier to realistically make them work.”
              Mope it is calles lawlessnes, the rule of man not law.
              It actually corrodes society.

              “No law no matter how black and white they have been is ever black and white.”
              Correct, that is not a reason to keep the grey areas as much as possible out of government and in our private lives.
              And we both know we can do far better than we do.

              This is also ANOTHER reason that laws must be read narrowly – not broadly.
              When you read law broadly – you again end up with the rule of man not law.

              “Even in the Bible you have that grey area every strict enforcer relies on when. THEY have to follow it.”
              OT, Not interested in debating the bible with you. I doubt you have read it. I have – cover to cover, every word.
              Regardless, religion is an entirely different domain. We are discussing government.
              Different standards apply to religion.

              Both religion and government share the domain of negative morality.
              The domain of positive morality belongs to religion not govenrment.

          2. “ You may note I am that way throughout all our discussions.”

            I have noted. It’s also a very authoritarian bent.

            1. “It’s also a very authoritarian bent.”

              What hypocrisy.

              The rule of man – discretion is the definition of authoritarian.

              The rule of law is anti-authoritarian.

              Law enforcement must follow the law – not a person – not “authority”

              Do you read what you write before you post ?

        3. No that is not why they have discretion and that is the problem.

          They should NEVER be free to pick and choose WHO they prosecute.

          And that is essentially what you are arguing for.

          Prosecutorial discretion is for completely different purposes.

          If a police office is in the midst of writing a speeding ticket and gets a robbery call – he should have the ability to respond to the more serious offense – even if someone gets let off.

          If the evidence in a case is not strong enough to get a conviction – the prosecutor should be able to drop the case rather than waste time.

          I do grasp that prosecutorial discrettion as I have defined it still leaves grey areas. We should work towards shrinking those.
          But I am not so absolutist to not understand that perfection is not acheivable.

          But the inability to enforce the law perfectly is not a justification for lawlessness.
          And that is what we have when we have broad discretion.

          The oath that every public servant takes – to uphold the law is not for show.

          While I would not start with police and traffic laws – I would get there after dealing with more serious discretion problems.

          I would impeach Biden over immigration policy. I would have impeached Obama.
          Enforce the law as it is, not as you wish it to be.

          I would go further – Any directive to law enforcement to NOT enforce the law is a CRIME.

          German Soldiers said they were just following orders.
          But Nuremberg said the rule of law comes before the rule of man.
          Nuremberg also took aim at bad law, but that is separate.

          If you seek to be a mayor, a police officer, a DA, a president, a judge and you can not honor the oath to enforce the law.
          Then DONT seek public office. If you lie in your oath of office – you can not be trusted.

          1. “ I would go further – Any directive to law enforcement to NOT enforce the law is a CRIME.”

            Interesting, sheriffs have told their deputies not to follow democratic government orders in Democratic states. Would that be a crime in your view?

            1. Orders ? no. Laws ? yes.

              Sherriffs should tell their deputies to follow the LAW, and only the LAW – democrat, republican, ….

              You seem to think I am a republican.

              I should at this point be well known to you and all on this blog, I am not. I voted for Gary Johnson in 2016 and Jo Jo Johnson in 2020.

              I would rather have either as president than Trump.

              That does not mean Biden is either good or legitimate. Though I doubt he is personally competent enough to mastermind anything.

        4. With respect to complexities.

          You assert that things are complex – without actually noting any complexities.

          I have not defined an absolute rule. We do not live in a perfect world it is not possible to prosecute every actual crime.

          That alone should stop us for passing more laws.

          But the WHY of not prosecuting matters.

          We allow people to kill others – in self defense. That does not make all murders justified. Nor does it mean we should exercise discretion with respect to murder.

          Murder is a pretty good vehicle for determining when discretion is justified and when it is not.

          When should the police the prosecutors, judges excercise discretion on murder ?

          Those are the same instances they should excercise discretion regarding speeding and jay walking.

          That is what the rule of law means.

          With respect to your other nonsense.

          If there is an issue of rights – that inevitably means the law is bad. Good laws do not conflict with our rights.
          Laws that do conflict with rights should be struck down by the courts – their duty to uphold the constitution requires that.

          If there is a conflict of laws – we enforce the law – despite conflicts. It is again the duty of the courts to strike down laws that conflict.
          Not the police, not the DA.s We do not fix bad conflicting laws by discretion, we fix them by voiding the law.
          We have legislatures to step in a rewrite the law to avoid the conflict.

          1. “ Murder is a pretty good vehicle for determining when discretion is justified and when it is not.

            When should the police the prosecutors, judges excercise discretion on murder ?

            Those are the same instances they should excercise discretion regarding speeding and jay walking.

            That is what the rule of law means.”

            Now you’re backtracking on your own claims. You say laws should ALL be enforced even the bad ones. All laws should be seen as black and white. Now you’re making exceptions which is the very flexibility that you are railing against. Making exceptions is exactly why there is flexibility in enforcement. You just proved my point.

            1. Not backtracking at all.

              It is called an analogy.

              Where would YOU allow discretion in the prosecution of murder ?

              The same standards should apply to jaywalking.

              Sometime ago I noted that the available FACTS do not allow prosecution of every case.

              I do not want police citing people they THINK were speeding. They must be able to prove it.
              But if the can they MUST prosecute.

              To the extent discretion exists – and we do live in an imperfect world, it must be driven by FACTS (or lack of) rather than WHO.

              Regardless, it is likely that you and I will not agree on exactly when there is enough evidence to prosecute some crimes.

              What I am addressing is not questions about the strength of the evidence.
              But deliberately deciding to enforce a law or not when there is no question about proof.

            2. Your not reading very carefully.

              But that is pretty normal.

              it is self evident that you have not been taught the skills needed for critical thinking.

              You are not capable of making distinctions.

              Refusing to enforce immigration laws, or law regarding shoplifting is not even close to the same as refusing to prosecute a crime that you do not have the evidence to convict.

              There are grey areas we will not be able to agree on.

              But what we have today goes far beyond grey areas.

              We are not enforcing the law even when there is no doubt. Or we are chosing WHO to enforce the law against.

              This is the rule of man not law, and it ends very badly.

        5. Where in the constitution does it say that any president or anyone has the power to not enforce the law ?

        6. So that we are clear I am literally demanding the enforcement of all laws – if you pass bazillions of laws, you must enforce them.

          If you are not prepared to enforce them – DO NOT PASS THEM.

          “The rule of law” demand no less.
          Anything else is “the rule of man” – lawlessness.

          The rule of man is litterally – when a person gets to decide which laws to enforce and which not.

          You have sought to argue for chaos – because ultimately that is what the rule of man is.

          You wonder why the left fails ? This is one of many major both philosophical and real world problems that always undermine the left.

          One of the reasons for limited government is because that is all we can afford – in many ways.

          If you had argued that enforcing all our laws would require a police state – I would agree.
          Except that we already have a police state – that is what it means when the police get to decide Who they arrest, and prosecutors get to decide who they prosecute.

          Reduce the laws to what we are capable of enforcing and then enforce them all – rigorously.

          If you choose to pass more laws – then you MUST provide for the cost to enforce them.

          You can not elide the cost through discretion.

          1. John now you a re making exceptions and that is why your view that all laws should be enforced falls into problems.

            Chaos is inevitable in a free society. You want there to be order to the point where freedoms and liberty are restricted. You are already making exceptions and that’s just you. Then there would be others wanting other exceptions too. Before you know it you end up exactly where we are.

            “ If you choose to pass more laws – then you MUST provide for the cost to enforce them.”

            I absolutely agree with that. However congress, both republicans and democrats pass laws that have no funding to enforce and oftentimes presidents, Governors, or AG’s sometimes don’t enforce laws that obviously can’t be enforced because there’s no funding to do so. That’s why current enforcement of some laws are not possible because congress never appropriated funds for its enforcement.

            Reducing laws is admirable, but much more difficult in reality. Laws have to be passed to repeal a law. And with congress the way it is it is impossible.

            1. PLease do not tell me what I want.
              I have written that clearly, there is no need for you to misstate it.
              Chaos is inevitable period.
              But there is a dramatic difference betweent he chaos of lawlessnes and the much more radically limited chaos of the rule of law.

              Further I have nothing against personal chaos.
              Chaos as a consequence of government is always Bad, and worse the greater it is.

              Yin and Yang
              “the maximum of individual freedom consistent with law and order”

            2. I do not want any exceptions.
              I accept[t that a few very limited exceptions must exist driven by the reality of the world.

              I did not create those exceptions. Nature did.

              And that is the point – you want exceptions based on Human whim – the rule of man, not law.
              I do not want any exceptions, but I accept that the nature of the world means that prosecutors will not always have the evidence needed to convict. And they should not prosecute if they can not convict.

            3. ““ If you choose to pass more laws – then you MUST provide for the cost to enforce them.”

              I absolutely agree with that.”

              Glad you agree. We would require funding for ever many woman and child in the country to be law enforcement just to cover 1/10th current laws.

              One of the reasons that prosecutorial discretion of the type you want is specifically so they do not have to fund law enforcement and have a police state. That is a bad reason.

            4. “Governors, or AG’s sometimes don’t enforce laws that obviously can’t be enforced because there’s no funding to do so. ”

              If you will not enforce them consistently, you must get rid of them.
              I would note you also have a massive equal protection problem with discretion.

            5. We could start by sun setting all laws.
              Pass a consitutional amendment that required every law to have an updown vote say 25 years after its original passage – for laws more than 25 years old on the next 25th anniversary of their passage.

              Simple majority both houses and the president.
              No amendments, no committees, just up down.

              Obviously congress could change or amend the law – but that would go through normal legislative process.
              If the legislature wants to change the law – they vote no to re-authorize.

              I have not covered all aspects – as an example you do not have to separately repeal a law to replace it.
              Most every new law has often a blanket provision to repeal any prior law that conflicts.

  13. “If not us, who? And if not now, when?”

    – Ronald Reagan









    The State of Texas is provided the full power and authority to “…engage in War,…” by the U.S. Constitution, understanding that it is “…in such imminent Danger as will not admit of delay.”

    No elected official, judge or Justice, or qualified “expert” or academic, has any power to legislate, modify legislation, or modify legislation by whimsy, notion or “interpretation.”

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “…men…do…what their powers do not authorize, [and] what they forbid.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

    Article 1, Section 10

    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 another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

    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.


    The American population is down to 61.6% of the people inside the borders of America.

    Not only has an illegal foreign invasion been perpetrated, America is on the precipice of complete subsumption and conquest by global communism.

    China et al. are smiling as they toast America’s ignominious defeat.

    Naturalization Acts of 1790, 1795, 1798 and 1802

    United States Congress, “An act to establish an uniform Rule of Naturalization,” March 26, 1790

    Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof…

    “We are five days away from fundamentally transforming the United States of America.”

    – Barry Soetoro, Indonesian Citizen


    Secession is not prohibited by the Constitution and no citation of a prohibition of secession will ever be obtained from the Constitution.

    Lincoln “won” 1860 with 38.9%; Lincoln had absolutely NO mandate for any action.

    All acts by Lincoln, subsequent to his unconstitutional denial of secession, were and remain unconstitutional and illegitimate to this day.

    Lincoln began the invasion of America by illegal aliens in 1863, as Lincoln served Karl Marx as his “earnest of the epoch” leading America toward the “RECONSTRUCTION of a social world.”

    Karl Marx’s letter of congratulation and commendation to Abraham Lincoln:

    Just as the SCOTUS of 1973 was overturned as diametrically and comprehensively wrong, so must the “Reconstruction Amendments” be, as they are illicit, improperly ratified and unconstitutional, understanding that it is near impossible to approve even one amendment, much less three, and no amendment can be considered properly ratified in an environment of brutal post-war military occupation, oppression and tyranny.

    Lincoln espoused Karl Marx’s communist pejoratives “capitalists” and “fleece the people” in 1837.

    “These capitalists generally act harmoniously and in concert, to fleece the people.”

    – Abraham Lincoln, from his first speech as an Illinois state legislator, 1837

    “Everyone now is more or less a Socialist.”

    – Charles Dana, managing editor of the New York Tribune, and Lincoln’s assistant secretary of war, 1848

    “The goal of Socialism is Communism.”

    – Vladimir Ilyich Lenin

    “The workingmen of Europe feel sure that, as the American War of Independence initiated a new era of ascendancy for the middle class, so the American Antislavery War will do for the working classes. They consider it an earnest of the epoch to come that it fell to the lot of Abraham Lincoln, the single-minded son of the working class, to lead his country through the matchless struggle for the rescue of an enchained race and the reconstruction of a social world.”

    – Karl Marx and the First International Workingmen’s Association to Lincoln, 1864

    1. George, where in the Naturalization Act does it say that free blacks that exist in the North or South have to be repatriated or deported? Where in the constitution is the provision that sets forth the right and the process for secession?

    2. George, you can’t just ignore that all these laws and Constitutional lingo were supplanted in 1868 with an Amendment to the Constitution, ratified by 3/4 of the states.

      You are promulgating “a big lie” in the style of the ex-President to claim that the African-Americans alive in 1868 and their descendants are something other than U.S. Citizens. You are a pitiless relic of the long-gone past to want to believe that somehow they are not.

      1. “It’s the [law], stupid!”

        – James Carville

        Let’s debate the law.

        You evade the question; it’s one for Clarence.

        Is secession prohibited by the U.S. Constitution.

        See if you can be truthful; I’ll give you the answer.


        Lincoln had no power to deny secession (which the Founders availed themselves of vis-a-vis the British) and everything Lincoln did subsequent to that denial was antithetical, illicit, illegal and unconstitutional.

        Lincoln ran around like Napoleon, Hitler, Stalin et al. killing people, destroying the country and shredding the thesis and fundamental law.

        A free nation cannot “amend” its essence in the middle of vicious dictatorship.

        Try ratifying ONE amendment now; let me know how you do.

        Slavery must have been, and in some cases was, ended by legal and constitutional means.

        You don’t believe in the Constitution and Bill of Rights; you believe in declaring martial law, seizing power, and rule by dictatorial, tyrannical despots.

        Lincoln received his just rewards; America and American constitutional freedom got the death penalty.

        Look around you, comrade.

        1. The United States entered the War of the Rebellion because it was attacked militarily FIRST in South Carolina be a self-described seceding state. In other words, that seceding state chose to wage war against the central government. Lincoln’s job as commander-in-chief compelled him to respond. Each seceding state that followed took up arms against the United States as well.

          In November of 1860 before Lincoln’s election it was written in the Philadelphia North American and United States Gazette: “The Union then formed was a wholly different thing, the States were asked to adopt it for all time, and were denied the option of choosing it for a few years only. An indissoluble Union was inevitable … It is impossible to overturn our political system. It is impossible to break up the Union and revert to the colonial federative system. Secession is and almost as much a burlesque of legality as it is absurd in respect of sense. It is revolution against the authority set up originally by the very revolutionists. The inadequacy, the painful inadequacy, of conception of their case on the part of those who threaten secession scarcely permits the grave refutation which might have been made in the early years of our history. They attack the massive and colossal strength of the political systems under which they live in the spirit of a township feud. They would subvert the institutions which are the pride and glory of the age, not in a deliberate and dignified manner, as becomes so great an act, but with passion, with enthusiasm of the small and local sort, and with merely childish accessories of means and of men. It is difficult, under these circumstances, to bring ourselves to the great work of declaring anew the character of the most imposing, powerful, as well as the most beneficent, form of government devised since the world began, and we earnestly hope the necessity to do so may not be forced upon us by any greater gravity of the case that now pains and mortifies us.”

          At least in the North, the majority consensus was that statehood conferred an indissoluble bond between the state and the federal government which South Carolina challenged with its declaration of secession and military rebellion. South Carolina would have been better off had she acted to bring about a constitutional convention on the matter, but, in the end, the issue of secession was decided by warfare, to which most scholars would say decides an issue that is not addressed in the Constitution.

          You seem to remain aggrieved by the outcome of a civil war decided 158 years ago, and, if that is the case, there will not be much anyone can say that will suffice to erase it. I find that actions taken by Lincoln which (in the end) preserved the Union to be consistent with the majority of the population at the time which held secession to be an impermissible act of rebellion. War decides a lot of things, and in this case, the outcome of the war meant that secession would not be tolerated and that the Northern victory provided the legal basis for finding against secession.

          No one believes in martial law as a matter of course, except when authorized under VERY limited conditions such as when the Insurrection Act is declared and enforced, or for situations where Congress suspends the writ of habeas corpus.

          Lastly, war is a messy thing. A VERY messy thing, indeed. Commanders were generally given wide latitude to accomplish certain goals and the method by which those objectives were achieved were not typically micro-managed by the president. Both sides took alarmingly high casualties and many lost limbs. Since the Union Army was significantly larger, it was able to withstand casualties better than the South and was able to penetrate deeper into Confederate territory. It is indisputable that some military tactics employed at the time (such as the total obliteration of everything during Sherman’s March to the Sea) would be considered a war-crime today.

          1. In irrefutable fact, South Carolina had licitly and constitutionally seceded, something the American Founders did 71 years previously, and Lincoln illegally and unconstitutionally invaded a sovereign foreign nation, a nation which was obligated by law to repel invasion.

            Secession is the key.

            You cannot cite the Constitution for a prohibition of secession.

    3. Where to begin?

      Subsumption and conquest by Communism? I’d say that is “over-the-top” and reactionary commentary on the direction of current US domestic and foreign policy. While I would agree that policy positions taken by liberal/progressive politicians are more in-line (and consistent with) the socialist-leaning nations of continental Europe, to say that we are being “swallowed up” by Communism is rhetoric more consistent with the times of the “Red Scare” than today.

      The Immigration Acts you’ve mentioned each served to supersede the other. It’s difficult to discern what you are trying to say by reciting them, other than to SUGGEST immigration policy should revert to an 18th century status, which would be held unconstitutional today.

      In a private letter, then-Justice Scalia was asked to weigh in on a theoretical secession of Maine to join Canada. His response:

      “I am afraid I cannot be of much help with [the question of whether there is a legal right, enforceable by the Supreme Court, for a state to secede], principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, “one Nation, indivisible.”) Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.”

      This essentially places the “right to secede” as having been decided as a matter of law by the outcome of the Civil War. This essentially acknowledges that law as determined by the outcome of war is law nonetheless. American jurisprudence and the right to self-govern was wholly dependent on the outcome of the American Revolution. Furthermore, the outcome of the secession question was similarly decided by the outcome of the War of the Rebellion. Joining the United States as a state forms an indissoluble bond making secession impossible, UNLESS Congress gives its consent to such an act or an amendment to the Constitution is proposed and ratified making this possible.

      One does not need a majority of the vote to govern. While Lincoln may not have achieved a majority popular vote in 1860, he won by a landslide in the Electoral College. His legitimacy as president (as it was designed by winning the electoral college vote) is not to be questioned and all bills and acts he signed not found unconstitutional by SCOTUS are valid.

      To say that Reconstruction Amendments (13th, 14th, and 15th) are invalid because they were passed after the Civil War ended is also spurious. The 13th Amendment (proposed 1864/ratified 1865), 14th Amendment (proposed 1866/ratified 1868), and 15th Amendment (proposed 1869/ratified 1870) were passed lawfully. For example, the 13th Amendment was ratified by 27/36 states — nearly all of the Northern states, and the border states in existence up until Lincoln’s assassination PLUS Alabama, Georgia, and North Carolina during the Johnson Administration. I fail to see how ANY state was compelled to ratify any Amendment in the years immediately following the war.

      It is not clearly evident to me how anything Lincoln might have known about Karl Marx was used to promote policies that passed Congress and made it into law during his term. Holding out an exchange of letter(s) between the two men so as to diminish Lincoln’s standing or his legitimacy is revisionist history that has no bearing on any political movement today in the United States.

      1. The Constitution holds dominion and Justices swear an oath to support the Constitution.

        Please cite the Constitution for an enumerated right to secession, or a prohibition of secession.

        The only thing America needs to hear from Justices is that they find no enumeration or prohibition of secession in the Constitution, therefore, States may avail themselves of secession per entitled voters.

        Justices are not on the Supreme Court to promulgate personal preferences, hypotheses, theories, notions, or fantasies.

        13 American Colonies, West Virginia, Scotland, Catalan, Bangladesh, Pakistan, Texas (from Mexico), Algeria, East Timor, every nation of the former Soviet Union and other countries have enjoyed secession.

        Secession is clearly constitutional by omission.

        If secession were unconstitutional, the United States would simply be America.

        Secession is constitutional, and States remain United voluntarily.

        Any particular United State may disunite, separate or secede based on a vote of its citizens, or it is neither a state nor united.

        The proof, as they say, is in the pudding.

        If any proof of the constitutionality of secession exists, it resides in the American Revolution when the United States of America seceded from Great Britain.

        You circuitously and incoherently meander, conceptually and semantically, in a groundless attempt to defend, support and promote your personal opinion and preference over the dominion of the Constitution.

      2. The left in the US today EXCEEDS the moderate socialism of Europe.

        Most of europe today flat out denies they are socialist.

        Further – though the macarthy era was dispicable, the left today is vindicating MacCarthy.

        They have marched socialist idiocy through our educational system and at the very least severely damaged the country.

        The grevance based politics of the modern left has always ended badly – usually in copious boodshed.

        With few exceptions Europe is NOT drowning in the intersectional nonsense of the left in the US today.

        Oddly while they do not and never had had the free speech that the US has always had until today.
        At the same time they do not have the supression of speech that we see from the left in the US today.

        Europeans who for the most part have NOT gone bat$hit crazy woke are if anything are in danger of the opposite.

        We are in strange times when Europe looks actually more free than the US.

        And that is the fault of the american left and even moderates in the democratic party deserve the blame for enabling this.

        Republicans should be embarassed by MacCarthy.

        Democrats WILL be embarrased as they continue the same nonsense.

  15. It is clear that the Constitution’s references to “invasion” meant an organized foreign army.

    Organized by whom? Foreign is self-evident. What qualifies as an army? Instead of getting wrapped around the axle on defining the who, we should focus on what harm an invasion does to a country. If we focus on the harm, then it won’t matter how well it’s organized, who is organizing it, or the term Army.

    Interesting he cited Arnold. The Biden administration is the “organizer” of the open border policy that is willfully enabling a swarm of foreigners to invade our country.

    With the individual right to self-defense, we can be our own security, if law enforcement is not available, or not willing to do the job. We don’t have to do anything more than determine the invader is threat. The individual states should have the same right to self-defense. If the federal government isn’t available, willing, or worse enabling the invasion, the states should have the natural right to do their own security.

    1. Maybe I’ll feel more like writing later, but Prof Turley seems completely unprepared for this Invasion case that’s been happening for decades & only shows how to lose this case again.

      Like who’s invading the USA & say in Public they are invading? The organizations called the UN, Rockefeller, IMF, World Back, Ford, Soros , Catholic Charities, Baptist Charities, Foundations etc., ect…….

      One of their main strategies is the Commie Technique of Cloward & Pevin (Sic) taught at Columbia University. Destroy the 3rd world pops & flood & overwhelm the 1st world nations with those gen pops.

      They lay out their mission statements, they are funding it & organizing it.

      To start with the States should seize all their assets, tell the SCOTUS to pound Sand as their are under Attack & already suffering Irreparable harm & when they stabilize the situation they’ll play pattie cakes with the court.

    2. Olly,

      “ Organized by whom? Foreign is self-evident. What qualifies as an army? ”

      Really? You have to ask? An armed force intent on crossing a border. Meaning literally tanks, infantry, killing civilians in the process. That’s an invasion.

      Simply crossing the border to seek asylum or hope to get a hearing for whatever is not an invasion.

      “ We don’t have to do anything more than determine the invader is threat. ”

      What’s the threat? You gonna be replaced? Your job at risk? What? You could say you are more likely to be replaced by technology than immigrants. Is that an invasion from..machines?

      “If the federal government isn’t available, willing, or worse enabling the invasion, the states should have the natural right to do their own security.“

      Ok, with what army? Whose money? Surely Texas will jack up taxes to pay for it, right? Or will they be begging the federal government for money?

    3. Thank you for noticing.

      The author is modifying the Constitution, for which he has absolutely no power or authority.

      Invade means invade.


      invade verb

      in·​vade | \ in-ˈvād
      invaded; invading
      Definition of invade

      transitive verb
      1 : to enter for conquest or plunder

      2 : to encroach upon : infringe

      a : to spread over or into as if invading :

      permeate doubts invade his mind

      b : to affect injuriously and progressively

      gangrene invades healthy tissue

      Article 1, Section 10

      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 another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

      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.

  16. Jonathan: Securing our borders is a federal–not a state responsibility. I doubt most Texans want to use state taxpayer money to continuing Trump’s “big beautiful Wall” on the border. And I doubt there is any interest in Congress to turning over federal money to the border states. There is not so much a border “crisis” at the border but an attempt by Gov, Abbott to create one and exploit it for his own political purposes. It seems counter intuitive you would want to encourage Abbott’s posturing.

    Which brings us to another so-called “invasion” at Morton’s Steakhouse in DC this week. At least that’s how Morton’s tried to portray a peaceful protest outside the eatery. Some enterprising individual alerted post-Dobbs protesters that Kavanaugh would be dinning at the famous steakhouse. So while the justice was devouring his T-bone protesters gathered outside and made a lot of noise demanding that Kavanaugh be forced to leave. Morton’s refused and helped in escorting Kavanaugh out the back door. In a statement after the incident Morton’s said: “Politics…should not trample the freedom at play of the right to congregate and eat dinner”. Fox’s Doug Ducey later asked the WH press secretary: “So these justices, because protesters do not agree with an opinion they signed on to, have no right of privacy, is what you’re saying?”

    I mention this incident because you previously argued in a column that protesting outside Justice Barrett’s house should not be allowed. So I consulted by worn copy of the Constitution to see if there is a right to “privacy” in such a situation. Couldn’t find anything in the Constitution or case law that guarantees the “right to congregate and eat dinner” in privacy. I even Goggled “Ruth Chris’–nothing there either. But apparently Ducey thinks there is–and you might probably agree. And I’m sure Kavanaugh was upset he didn’t get to finish the expensive bottle of Cabernet Savignon. I expect Kavanaugh will consult with Sam Alito. Perhaps Alito will once again channel the 17th century jurist Matthew Hale, you know like in the Dobbs ruling, and find a right pf privacy to dine out without being interrupted by meddlesome protesters.

    1. Dennis

      Your post is dripping with class envy.

      If you are reasonably smart and work hard, you too will have a meal at Morton’s.

      1. “(Dennis) If you are reasonably smart and work hard, you too will have a meal at Morton’s.”


        Instead of bussing tables?

        1. Monumentcolorado/Young: Sorry to disappoint. But I live a very comfortable upper middle class life. Our home is on a cul-de-sac–a large and spacious 3-story with 2 decks and an unobstructed view of the woods, a creek and deer roaming nearby. We also have a home on the West coast that overlooks the Pacific Ocean. What in the world could I possibly be envious about? As to eating at Morton’s? Sorry to disappoint again but I am a vegetarian. When I am in DC I dine at an Indian restaurant that specializes in tasty vegetarian dishes. A T-bone at Morton’s would probably make me sick! Now, I did buss tables for a while when I was working myself through the university. Wasn’t bad actually. Met several young ladies and there were other perks. The executive chef often gave me generous quantities of food from the kitchen at the end of my shift to take home. Ever had chateaubriand? Not bad faire for a “starving student”. Any other non-sense you want to talk about?

      2. No, it’s sarcastically dripping with the irony of a justice not being able to enjoy the privacy of eating a steak when he just ruled there is no right to privacy on the constitution.

        1. No one has overruled the right to privacy.

          Sorry, I am wrong. SCOTUS has found that Trump has no right to privacy repeatedly.

          SCOTUS also found repeatedly against the right to control over your own body in Covid cases.

          So why did you expect abortion to be different from vaccination of a persons private papers ?

          1. Stalking is not the same as protesting. Being on a public sidewalk protesting is protected under the constitution.

            SCOTUS ruled in Madsen v. Women’s health center that protesting in front of homes is constitutional as long as they remain on public walkways and within reasonable times.


            Obviously the justices don’t have a lot of leeway when it comes to privacy.

            1. “Stalking is unwanted and/or repeated surveillance by an individual or group toward another person. Stalking behaviors are interrelated to harassment and intimidation”


              We protest government.
              We stalk people.

            2. Reading Your link – the Court explicitly did NOT find protests in front of homes constitutional.

              They found the scope of the law being challenged overly broad.

              They already upheld laws banning protesting in front of residences.

              The Still valid controlling case regarding residential protests is Frisby V Schultz


        2. This morning I attended an event seeking to reduce my counties use of Bail as a weapon.

          I support the constitutions proscription of excessive bail.

          A woman got up to speak.
          A decade ago the police responded to a domestic violence call where her boyfriend was beating her.
          During their efforts to separate the two of them, she spat on the police and ended up being charged with multiple felonies and misdemeanors and spend 3 months in jail on 350K bail before a time served deal was reached.

          A decade later she lead summer of 2020 BLM protests in my city that resulted in fires and broken windows at the police station.
          Several people were given $1M bail – which was reduced after a few weeks, She was arrested and given 250K bail for inciting a riot.

          Then she went off on a rant about January 6 where according to her insurrectionists killed 8 people.

          You would think that she might grasp the hypocracy of her position.

          While being charged with inciting violence at a protest, she is ranting about others for less violent remarks than hers.
          She is currently out on Bail with a trial in October that there is a good chance in this Red county she will win, but that even if she does not, she will not face a fraction of the sentence that protestors did on J6. Many of whom have been in jail for 18m without bail.

          The constitutions requirements for reasonable bail – should apply to her AND J6 protestors.
          The free speech, free assembly and petitioning government provisions of the first amendment should prevent her and any other protestor who is not violent but says things those in power do not wish to hear – whether true or false, from being charged much less convicted.

          Are you capable of agreeing, that whether it is a BLM protest or J6 that only those who committed actual violence should have been arrested, and that even they should have reasonable bail. That those who were engaged in protest should never have been arrested.

        3. Please rad Dobb’s, it was not about the right to privacy.

          Further YOU have demanded and gotten the court to vitiate the right to privacy repeatedly. Such as Tax records.

          When you burn a right for one, you do for all.

          Remember the debate about discretion – you do not get to pick WHO the right to privacy applies to.

        4. Hypocritically calling others hypocrites over the right to privacy ?

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