Although I’m not a county sheriff (that just happens to be my last name), I do recognize the extremely important role that sheriffs play in protecting our constitutional rights. I also have some very strong views on Arizona’s new immigration law I’d like to share with you, along with some of my observations about Sheriff Joe and Sheriff Mack’s recent exchange on Freedom Watch. But before you consider my take on the issue, I urge you to watch the short video below:
First, I am a huge fan of Judge Andrew Napolitano. He has done more to bring the Constitution back into the main stream media after its long period of exile, than perhaps anyone else. He has had an extraordinarily positive influence on many of the people at Fox News, including Glenn Beck. He is an inspiration and truly one of my heroes. However, in this one instance, I wish he had spent the short time he had with these two sheriffs getting more into the details of the law in question here: SB1070.
About Sheriff Mack
Sheriff Richard Mack, another one of my heroes, is totally dedicated to supporting and defending the Constitution against all enemies, foreign and domestic. As a man of tremendous integrity, it is his hard core commitment to the Constitution and the Bill of Rights that causes him to have reservations about Arizona’s new law, and that is an admirable thing.
The first two questions any person serving at any level of government should ask themselves about any piece of legislation are, “Does the Constitution authorize this law?” and “Does this law violate any of the Amendments contained in the Bill of Rights?”. This is exactly what former two term Graham County sheriff, Richard Mack did while he was in office. He now dedicates himself full time to encouraging sheriffs across the United States to do the same. If you have not yet read his book, The County Sheriff: America’s Last Hope, order a copy today, read it and share it with as many people as possible!
However, I’m convinced that Arizona’s new law doesn’t contain any provisions that would authorize the kind of unconstitutional abuse of power Sheriff Mack is concerned about. In fact, the law specifically prohibits racial profiling and does not authorize police to inquire about a person’s immigration status unless lawful contact has already been made for some other unrelated reason, such as a traffic violation, domestic dispute etc. The law simply does not authorize police to approach people and search or detain them based on the suspicion that they are an illegal alien.
Free?
Sheriff Mack hits the nail on the head, however, when he expresses disappointment over the fact that Arizona has failed to address the underlying issues that make immigration (illegal or otherwise, I might add), problematic for our state. The root cause of so many of Arizona’s problems related to immigration today can be summed up in one four letter word: Free.
Of course, the word free would be a problem, even if there were no illegal immigration at all, because nothing provided by any government is in fact free. There are already more than enough American citizens and people living in our country legally who take advantage of “free” education, health care, food and housing to cause an eventual crisis. Illegal immigration simply exacerbates the problem and has brought the crisis upon us sooner.
The belief in free stuff brought to you by the government, is simply a delusion. And it’s the delusions of some, combined with the refusal of others, to care about the fact that government services are provided at someone else’s expense, that makes illegal immigration a bigger and more immediate problem than it otherwise would be.
America’s Toughest Sheriff
Sheriff Joe stressed that he also is committed to keeping his oath of office and enforcing the law, in spite of the fact that the federal government seems not just unable, but unwilling to do so. Whatever you may think of Sheriff Joe and his policies, you certainly can’t accuse him of being a spineless sheriff. His stubborn refusal to bow to federal pressure and his continual assertion that the elected sheriff, rather than any person in the federal government, is the highest law enforcement official in Maricopa County, is a welcome departure from the status quo of subordination to our overlords in Washington, DC. We’re certainly going to need more independent minded sheriffs like Sheriff Joe Arpaio in the near future. But there were two things that Sheriff Joe mentioned in the interview which made me a bit uncomfortable.
First, unlike Sheriff Mack, Joe Arpaio has yet to recognize the fact that most of the drug related violence and property crime which occurs in Arizona could be eliminated by ending drug prohibition and the federal government’s so called “War on Drugs”. Furthermore, like Sheriff Mack, I assert that the federal government has no authority under the Constitution to pass laws simply banning any plant or substance its wants to in Arizona. Congress is empowered by the Constitution to regulate actual inter-state commerce, but not simply any activity related to, or which might affect inter-state commerce, which is how the feds have been justifying their drug war for decades. Simply put, most federal drug laws are unconstitutional usurpations of Arizona’s authority to set its own drug policy. Sheriff Joe, and the rest of the people in our state and local governments for that matter, need to recognize this and act appropriately.
Second, Sheriff Joe insisted that he must enforce every law “on the books”, large or small. While I understand that law enforcement officers must exercise discretion and judgement and they must prioritize, I completely agree with him on this point! However, he should also remember that a law which violates the Constitution is no law at all. Alexander Hamilton explained this axiomatic point well in Federalist #78:
There is no position that depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
Judge Napolitano summarized this point up well when he finished the interview by reminding the sheriffs and the audience that “The Constitution is the supreme law of the land.”
My Three Disappointments
Here, I would like to express my own disappointment over three things which were not mentioned in the segment. The first is that no distinction is being made by most people between immigration and naturalization in this debate. The Constitution gives the federal government the authority to control the process of naturalization, not exclusive control over immigration. The two words may be related, but they are not synonymous. So where does the federal government claim its authority to control immigration as opposed to the process of naturalization? For a more detailed treatment of this question, please read Michael Boldin’s article, Immigration vs Naturalization.
Second, the new immigration law (SB 1070), needs to be scrutinized for compliance under the Arizona State Constitution. Few people have even thought of this and no one seems interested in talking about it in a serious way. Do any of the provisions, for example, which prohibit interference with state and local law enforcement’s sharing of personal information with federal agencies violate the Arizona Constitution? In the month leading up to the bill being signed into law, I argued that this provision was unnecessary and even dangerous. I urged my state legislators to amend the bill in order to remove it, and I have a feeling it will come back to haunt us.
Lastly, it seems like the talking heads never get tired of spreading misconceptions about the relationship between the states and the federal government. As constitutional scholar Robert G. Natelson observes in his recent article, Immigration, Foreign Affairs and the Constitution:
This assertion immediately brings to my mind the title of Judge Napolitano’s recent book, Lies the Government Told You: Myth, Power, and Deception in American History. But anyway, how does Robert Natelson respond to this assertion? He writes:
First, the Constitution gives the federal government supreme authority over foreign policy. Congress and the President can pre-empt an issue by exercising one or more of their enumerated powers. If Congress dislikes a state action in that realm, Congress can pass a law overriding it.
If, however, Congress has not acted or acted incompletely, the states have certain reserved powers to act on their own. In other words, the Constitution acknowledges concurrent, although subordinate, state authority over foreign affairs – including immigration.
I encourage you to read his important article for further clarification!
As I’ve said, it’s disappointing that these three points have escaped people’s notice and are hardly being discussed at all. I realize I’m not a constitutional scholar, a retired judge or a sheriff, in anything but name (literally). However, I have done more homework on these issues than your average citizen and that’s really all I’m calling on others to do as well. There is a new surge of grassroots citizen activism these days and more than ever, we have to do our best to ask the right questions when faced with tough issues. One of the keys that will enable us to do that, is a commitment to self-directed learning about the Constitution, what says and originally meant.
Derek J. Sheriff is the coordinator for the Arizona chapter of the Tenth Amendment Center. His blog and podcast “Principles of ’98″ can be found at www.PrinciplesOfNinetyEight.com
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