Scalia's Dissent: Would States Have Joined the Union if Security had not Been Guaranteed?

In his scathing SB 1070 dissent Monday, Associate Supreme Court Justice Antonin Scalia contemplates whether states would have joined the union had the federal government not been placed to guarantee their border security:

Scalia asks if the states would have ever even joined the union if they had contemplated the federal government taking the power to enforce immigration law away from the states and then purposefully leaving their borders with another country undefended. He concludes that the union could not have been built that way: “Now, imagine a provision—perhaps inserted right after Art. I, §8, cl. 4, the Naturalization Clause—which included among the enumerated powers of Congress ‘To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.’ The delegates to the Grand Convention would have rushed to the exits.”

I’ve been pondering this since yesterday’s decision was handed down, especially as regards my home state of Texas. Texas joined the union in 1845, after nearly a decade as a sovereign nation with international recognition as such.

To understand how that happened, we have to go back a few years. Dictator Antonio Lopez de Santa Anna had seized power in Mexico and abrogated Mexico’s liberal 1824 constitution. Texas was at that time a state of Mexico joined with the present state of Coahuila. The Texians, Anglos and Tejanos together, declared independence in 1835 and Texas won her independence from Mexico in 1836, at the Battle of San Jacinto. Texas’ security was an ongoing source of strain for the sprawling, resource-rich but lightly populated republic, and by 1842 Texas and Mexico were engaged in a border war. Santa Anna had lost and regained power, and vowed to resubjugate Texas as a Mexican state. Texas also had an ongoing internal security problem with hostile Indian tribes, and its population of about 100,000 (by 1847 ) struggled to cope. Annexation happened in 1845 by treaty with the United States, Texas becoming the only state to enter the union as such. A clause in the treaty allowed Texas to split up into four additional states, but contrary to popular belief, did not allow for secession.

Slavery was a blight that delayed Texas’ annexation by a year or so, but by the time of annexation, border security led Texas’ list of concerns. Texas’ tiny army simply could not effectively defend the 1,200 mile border with hostile Mexico while also dealing with the internal threats. Texas’ annexation sparked the Mexican-American War in 1846.

Would Texas have joined the union if the federal government was not only actively failing to enforce border security, but was also threatening to sue any state that did enforce its border? It’s hard to see why it would have. Republic President Sam Houston even said that “Texas will again lift its head and stand among the nations. It ought to do so, for no country upon the globe can compare with it in natural advantages.” Houston was pro-union during the period leading up to the Civil War and had good relations with the Indians, in particular the Cherokee, for whom he was once their agent with the US government. Houston wasn’t a Fauxcahontas. Security was the main point of Texas joining the union in 1845.  As a republic Texas had treaties with several European nations and already dominated the world cotton market, which was key at the time. Had Washington DC in those days mocked Texas for desiring security, Texas probably would have remained a sovereign republic and taken its chances alone against Mexico. Its treaties with the British and French might have come into play to guarantee its independence.

The point of all of this is to note just how far Washington has strayed from its original purpose. The federal arrangement of powers was intended to leave most functions to the states, while resting overall security with the federal government so that it might deal effectively with international relations and threats. The Civil War changed that arrangement permanently, mostly but not entirely for the better in my opinion. Today, Obama’s DC is treating some states as if we are internal enemies because we want secure borders and secure elections, but mostly because we didn’t vote for him. Border and election security are basic needs, and as citizens we have every right to see those needs met. Arizona is well within her rights to defend her border with Mexico. I think SCOTUS mostly got Monday’s decision wrong, for the reasons Scalia lays out in his dissent: When the federal government abandons its core duties, states must have the right to defend their citizens. The Supreme Court’s decision essentially robs them of that right. The only winners in the Supreme Court’s decision were the drug smugglers and coyotes. Everyone else comes out a loser, with the citizens of all backgrounds along the border losing the most.