Wednesday, 28 November 2018

Migrant Caravan Reminds Us That We Need to Use — and Obey — the Constitution

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With America threatened by the invasion efforts of a “migrant caravan” from Central America, Rob Natelson, a constitutional law professor, said on the Lars Larson Show that the U.S. Constitution has specific relevance to the situation.

Natelson is the author of The Original Constitution: What It Actually Said and Meant, and he has been cited 17 times by the U.S. Supreme Court since 2013. He explained to Larson that Article IV, Section 4 of the Constitution — what is sometimes referred to as the “guarantee clause” — not only grants power to the federal government to stop the migrants from forcibly entering into the United States, it requires it.

Article IV, Section 4 states, “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.” (Emphasis added.)

Natelson said that this language gives the federal government “no discretion about it,” but is rather an “absolute command.” If federal officials fail to stop an invasion of any one of the several states, they have broken their oath to uphold the Constitution of the United States.

Larson asked if the Framers of the Constitution meant something different by the word “invasion” than the present actions of these civilian migrants, to which Natelson responded “no.” According to Natelson, at the time the Constitution was written, the definition of invasion was “any kind of incursion without permission,” and was not restricted to just military invasions. National defense is, of course, covered in other parts of the Constitution.

As commander-in-chief of the military forces of the United States, and under obligation to make sure the laws of the United States are “faithfully executed,” the president has no discretion in the matter. He took an oath to the Constitution, and that would include the obligation to protect each of the states from an unwanted entry, or invasion, into the country. The Constitution is the fundamental and supreme law of the land.

Natelson added that this obligation also applies to the federal courts and to Congress. It is, Natelson insisted, a “unique part of the Constitution” in that it is not just a grant of power, but a “requirement.”

Natelson and Larson also discussed the question of whether the federal courts will back President Trump’s actions to prevent the invasion of the country by militant migrants. Natelson said he was “optimistic” that, in this case, they would ultimately support the president’s efforts, citing their decision that upheld Trump’s temporary travel restrictions on persons coming from several Muslim-majority countries. Natelson believes there is a “long precedent” for the courts backing the president’s constitutional authority in this area.

Trump recently vowed that if Congress refused to give him the $5 billion he has requested to build the wall that he would prevent illegal immigration the way he has been doing it. Natelson observed that, if Trump takes his presidential oath seriously, he has no other choice, insisting that stopping the invasion is “not a judgment call,” but rather an “unconditional duty.”

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Many Americans, including Natelson, frustrated at the failure of Congress, the executive branch, and the courts to follow the Constitution’s requirements, have considered the possibility of a constitutional convention to amend the Constitution. They argue that such a convention is necessary to make the federal government follow the Constitution.

This is misguided. If the government is not following our present Constitution, as written, why would they respect an amendment to it?

The best answer is not a constitutional convention, which is fraught with danger. After all, why would our present electorate that just returned Nancy Pelosi and her fellow radicals to power in the House of Representatives suddenly elect good delegates to a constitutional convention? Does anyone really want to have such a convention in our present atmosphere, in which so many people in our country disrespect our present constitutionally protected liberties, such as the Second Amendment? James Madison, rightly called the “father of the Constitution” for his work at the 1787 convention that produced the U.S. Constitution, said he feared for the future of America were we to have a second convention.

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The best answer is to use the Constitution we have now, as Natelson has rightly suggested in the case of the militant caravan attempting to invade our country. The Constitution already provides a solution through its explicit requirement that the federal government protect each of the states from invasion. Instead of taking the risks of a constitutional convention, when the delegates would be elected by the same electorate that put Nancy Pelosi and her gang back in power, we should use the Constitution crafted by wise framers such as James Madison.

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