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Circumventing Legal Authority By: Alan Nathan
Washington Times | Monday, April 23, 2007


Whether it's about illegal aliens, property rights, or reconciling our jurisprudence with international law, inferior vestiges of government power have circumvented an authority not vested in them by our Constitution, and the proof is disturbingly self-evident.

For the last two years, a slight majority of poll respondents have said that they are open to guest-worker programs and pathways to citizenship for non-documented residents. However, 70 percent correctly insist that we should first seal up the borders against the hundreds of thousands of people entering our home illegally every year.

America's governing bodies deny our pleas by cowering behind lofty claims of needed comprehensive immigration reform. It's a maneuver to supplant their responsibility with an excuse to prolong noncompliance with our Constitution.


The nation's illegal-immigration debate resembles a dysfunctional family, who, when confronted by a leaky roof, would rather fight about where to place limited buckets instead of simply repairing the holes. Just as sealing the ceiling shouldn't be hostage to buying more pails, so implementing constitutional law shouldn't be contingent upon legislative law not yet written.


All three branches rightfully assert themselves against each other via their separated powers of checks and balances as defined by our Framers. Consequently, it follows that each is equally answerable to those mandates ordering them to perform specific responsibilities for us.


From the perspective of our Constitution, which is the population's directive to our leaders as shown in its preamble "We the people," the U.S. government is defined as our legislative, executive and judicial powers. That said, why have "We the people" permitted all three to violate Article IV, Section 4 of that same document?

 

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.


I'm sure when our elected officials finally pass immigration reform that it will manifestly blossom into one of America's most cerebral advocations of broadened sensitivity and committed altruism for illegals. We can only hope that the legislation proves equally respectful and gracious to the citizens they're sworn to serve.


Regardless of that law's intent, however, it shall be non-binding to whatever extent it conflicts with the government's existing obligations under Article IV. Given our representatives' allegiance to those wanting cheap labor and imported constituents, constitutional compliance must be mandatory.


Similarly offensive has been the Supreme Court's rogue treatment of eminent domain. On June 23, 2005, in Kelo v. City of New London, the court violated the Constitution by unilaterally amending the Fifth Amendment's stance against "private property taken for public use, without just compensation." According to Justice John Paul Stevens, writing for the 5-4 majority, "public use" could also be interpreted as "public purpose" allowing local governments to take your land -- not just for bridges and highways traditionally understood as a priority, but also for developers merely claiming they could generate more tax revenue than current owners.


Not even the Supreme Court may unilaterally amend the Constitution under the guise of judicial review. The right to interpret does not a right to amend make. That kind of action is impermissible without two-thirds of Congress and three-quarters of the state legislatures so authorizing by vote.


A year later, along with other decisions, the court ruled in Hamdan v. Rumsfeld that terrorist prisoners are entitled to the protections of the Geneva Conventions' Common Article III. This seems nonsensical since that treaty's Article II definitively opposes the court's finding:

 

Although one of the powers in conflict may not be a party to the present convention, the powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the convention in relation to the said power, if the latter accepts and applies the provisions thereof.  (Geneva Conventions, Article II, Clause 3, Aug. 12, 1949.)

 

The "latter power," in this case the terrorist community, has never accepted and applied "the provisions thereof," and accordingly does not meet the contingency that would otherwise bind us.


A question to the learned justices: How can the very law that debunks your ruling be the grounds that support it?

Alan Nathan, a combative centrist and "militant moderate," a columnist, and the nationally syndicated talk show host of "Battle Line With Alan Nathan" on the Radio America Network.


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