Tuesday, March 22, 2011

Arizona on the edge, or over it

Everyone thinks their state legislature is the most embarrassing in the country and that the rest of America must be pointing and laughing at them whenever the lege is in session. Most of the time, no one notices what their own legislature is up to, let alone what other states are up to. It usually takes something utterly moronic, like a an anti-evolution bill or a statewide dress code banning droopy pants, to get the attention of the rest of the country. However, this year has been a banner year for bad legislation and bad behavior by legislators. Right-wing extremists have taken over half of the legislatures in the land and bizarre statements by confused local radicals get regular national coverage on the nightly news.

This brings us to Arizona's Russell Pearce. Pearce first blipped onto the national radar screen last year as the author of Arizona's hyper-profiling law SB 1070. He followed up on that bill by proposing one of the first "birthright" laws to limit the 14th Amendment, which automatically grants citizenship to all children born in the United States. In other states, Republican have proposed their own legislation that imitates Pearce's two odious bills. The second bill besides besides building on the anti-immigrant bigotry popular in parts of the right also builds on a revival of anti-federal, states' rights sentiment being voiced in the same circles. Pandering to the new states' rights movement has resulted in Republicans proposing nullification laws, speaking favorably of secession, and embracing a strange constitutional interpretation that has come to be called "tentherism." The tenthers claim that the 10th Amendment essentially prevents the federal government from doing anything that isn't very specifically mentioned in the body of the Constitution. In trying to stay ahead of the tenther and birthright movements, Pearce yesterday moved into the realm of militia-style constitutional nonsense by claiming there is no such thing as US citizenship.
Now U.S. history, most of us weren’t around when the Constitution was written. But you remember we kind of existed before Congress, the states. We-we-we created the Congress, we created the federal government, by compact. Do you know what existed before the Congress, the states? Do you know, you’re not a citizen of the United States; you’re a citizen of a sovereign state. The fifty sovereign states makes up United States. We’re citizens of those sovereign states. It is not a delegated authority. It’s an inherent authority that states have over the federal government. [applause] It’s about time somebody gets it right!

You're going to have to look hard to find a constitutional authority to back him up on this. My passport was issued by the government of the United States and very clearly states in several places that I am a citizen of the United States. The state of Washington is not mentioned in my passport though there is a space where I could mention it as part of my mailing address.

Those who believe as Pearce does could say that my passport lies since it was issued by the wicked federal government. Okay, let's go back to the Constitution itself. The phrase "Citizen of the United States" appears three times in the body of the Constitution (when setting forth the requirements for Representative, Senator, and President). The phrase is not "Citizen of one of the United States." It clearly means that we are citizens of an entity called "the United States." The word Citizen (always capitalized) is also used when describing residents of individual states, but the implication is that we are citizens of the United States as well as citizens of the constituent states.

Five amendments deal with the rights of citizens (the 14th, 15th, 19th, 24th, and 26th). All of them use the phrase "citizens of the United States" to describe the people that are are the subject of the amendment. The 14th Amendment--the one most hated by the anti-immigrant wing of the far right--states that all "persons born or naturalized in the United States" are "citizens of the United States and of the State wherein they reside." this, again, makes clear the we are citizens both of individual states and of a larger entity called the United States.

Pearce's denial of US citizenship sounds suspiciously like "sovereign citizenship," a legal theory popular inside the militia movement. Proponents of "sovereign citizenship" deny the very legitimacy of the US government. The list of issues close to the hearts of followers of this ideology will be familiar to anyone who has looked at the tea party movement. They claim the income tax is illegitimate, the Federal Reserve is illegal, they want to repeal the 17th amendment (direct election of Senators), they want to return to the gold standard, they believe that there is a suppressed "real" 13th Amendment, they hate the federal court system and judges in general, and they think there is just something wrong with the 14th Amendment. This is very clear in their language when they draw a distinction between sovereign citizens and "14th Amendment citizens."
Among the various subjects of energetic sovereign citizen revisionism, perhaps none is more important than the 14th Amendment. Ratified in 1868, the Amendment had several aims, including the guaranteeing of United States citizenship for the ex-slaves. But to sovereign citizens it did much more; they claim that before its ratification, virtually no one was a "citizen of the United States." One would previously have been a citizen of the republic of Ohio or of some other state; only residents of Washington, D.C., or federal territories were citizens of the United States. The 14th Amendment created an entirely new class of citizens, they argue, one that anybody, theoretically, could voluntarily join.

But to become a citizen of the United States was to willingly subject oneself to the complete authority of the federal and state governments; clearly, no one would want to do this. The government, therefore, tricked people into entering into its jurisdiction and that of the "corporate" state government by having them sign contracts with it. The trick was that people did not even realize they were signing contracts: these included items like Social Security cards, drivers' licenses, car registrations, wedding licenses or even, as [Oklahoma City bomber] Terry Nichols noted, hunting licenses and zip codes.

Pearce, like many Republican politicians over the last two years, is rushing farther and farther to the right in an effort to stay ahead of his increasingly radicalized constituents. It's an ugly spiral. His rush to the right, legitimizes radical ideas and encourages his less radical followers to move farther right, which forces him farther right, and so on. Pearce has no moved beyond the realm of being merely a very conservative politician into outright sedition against the government. With his birthright law, he does not use the legal process of amending the Constitution to get rid of a part he dislikes; he is attempting to use the legislative process of one state to override the Constitution. This is wrong on two accounts. First of all, laws cannot void a part of a constitution; they must operate within the parameters set by the appropriate constitution. Secondly, the laws and constitutions of the various states are subordinate to the US Constitution.

I'm not intimate enough with Arizona politics to know if Pearce is a true believer in sovereign citizenship or just a demagogue. If the former, by renouncing his US citizenship, he is unfit to hold public office an might not be legally allowed to hold office in Arizona. If the latter, we can hope that the voters of Arizona will finally say enough! and pull back from the brink. Either way, Pearce is playing a very dangerous game and anyone who follows him should think twice before going any further.

Sidebar: Most Americans, and even Arizonans, are probably not aware that the Territory of Arizona was originally established by the Confederate States of America, not the United States. At the time of Southern secession in 1860/61, the entire Southwest was administered as the Territory of New Mexico. The term Arizona was generally understood to mean only the part of the Territory south of the Gila River, the land brought into the Union by the Gadsen Purchase. The miners and settlers in Arizona felt isolated from the traditional centers of New Mexico around Santa Fe, Albuquerque, and Taos. Several times they petitioned the federal government for their own territorial government, but were turned down on account of their tiny population. One curious feature of the proposals was that they all divided the New Mexico Territory into north and south parts, not east and west like the current states.

Having been rebuffed by the Washington government, the proponants of self-rule for Arizona held a convention in March 1861 and voted to join the Confederacy. The fact that the War Department had begun removing troops from the western territories to fight in the East only added to the feelings of Arizonans that Union government didn't care about their needs. The Confederates were quick to take advantage of this situation. In July 1861, a small force under Col. John Baylor, invaded New Mexico from El Paso and defeated the remaining federal forces in a battle near Mesilla. Four days later, Baylor proclaimed the Confederate Territory of Arizona with himself as governor. The borders of the territory included all of the New Mexico territory up to the thirty-fourth parallel.

Most of the Civil War in the southwest was fought on the Rio Grande. First the Confederate army fought its way north, almost to the Colorado border conquering most of the New Mexico Territory. Beginning in April 1862, Union troops mounted a counter offensive and had pushed the Confederates back to Texas by late summer. The fate of Arizona proper paralleled the main campaign. Captain Sherod Hunter organized a militia, the Arizona Rangers, to maintain order around Tucson, but in May 1862, a small invasion force from California was able to brush him aside and reconquer Arizona for the Union.

The legal fiction of a Confederate Arizona lived longer than the physical reality. The Confederate Congress passes a bill formally organizing the territory in January 1862. The next month, Jefferson Davis signed the bill and a representative from Arizona, Granville Oury, was seated in the Confederate Congress. After the territory was reabsorbed into the Union and into New Mexico, a government in exile was set up in Texas and remained in operation till the end of the war.

Despite the fact that they were kind of busy fighting for their lives, the federal government learned the lesson of Arizonan dissatisfaction. One month after Jefferson Davis had offically created the Confederate Territory of Arizona, the US House passed a bill organizing a federal Territory of Arizona consisting of the western half of the New Mexico Territory. Arizona remained a territory for a half century, its citizens being disappointed at having their petitions for statehood turned down as often as their petitions for territoryhood had been. When statehood was finally inevitable, Arizonans had to overcome one last obstacle, Republican Senators who wanted to re-merge the territory with New Mexico to prevent Arizona from electing any more progressive Democrats to Congress. Statehood was finally signed on 14 February 1912, the fiftieth anniversary of Jefferson Davis' proclamation of the Confederate Territory.

Far right extremists, like Russell Pearce, regularly appeal to the themes of Neo-Confederatism. States' rights, nullification, an idiosyncratic vision of independence and self-determination, and defiance of central authority are all part of their rhetorical repertoire. Thus it is pleasantly ironic that these messages are now being turned against them. This month, Arizonans living south of the Gila--the original Arizona--have launched a formal effort to secede and form a new state. They claim as one of their main reasons for undertaking this measure Russell Pearce's "flagrant defiance of the realities of existing constitutional law and the rights of those who live within our borders."

Whatever else they might be, Arizona politics are never boring.

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