In his coverage of the U.S. Supreme Court’s hearing on the validity of Arizona’s immigration law (S.B. 1070), ABC News reporter Terry Moran stated that the issue before the court is: “Does Arizona have the constitutional right to make its own immigration law?” This followed anchor Diane Sawyer’s statement in the same news segment that the issue before the justices is “whether people in this country can be stopped by the police [and] asked to prove they are here legally if the police have other reasons to be suspicious of them.”
Both Moran and Sawyer got it wrong. The case is about power, not rights.
Sawyer’s version of the issue suggested that the court is addressing a question of individual liberty. Despite the protestations of The New York Times the next morning (S.B. 1070 unleashed a “reign of terror,” said The Times), Chief Justice John Roberts made clear from the outset that individual rights are not the issue. Addressing Solicitor General Donald Verrilli, Roberts stated: “No part of your argument has to do with racial or ethnic profiling, does it?” Verrilli agreed that it did not. Only twice in the entire 90 minutes of argument was the subject of individual rights mentioned, both times in describing people who have a right or do not have a right to be in this country.
Sawyer’s attempt to make the case about individual rights, like The Times’ editorial, is not surprising given the generally liberal leanings of both news outlets. After all, ABC wishfully headlined their story, “Immigration law divides Supreme Court,” though there was very little division evident from the oral arguments. Even Justice Sonia Sotomayor suggested to Verrilli that his argument was “not selling very well; why don’t you try to come up with something else?”
For his part, Moran also stated the issue before the court in terms of rights — “states’ rights.” But not once in 79 pages of transcript is there a mention of “states’ rights” — not by any member of the court, nor by either lawyer. And for good reason.
States don’t have rights. People have rights. States have sovereignty. They have powers. But states don’t have rights in any meaning of the term that makes sense in a discussion of American constitutional law.
States, in the generic sense, may have rights in other philosophical worlds, but in American political theory the state exists at the will of the people, with each person exercising his or her right to participate in the formation of a government and to grant it specific powers, or to limit those powers otherwise inherent in sovereignty. The Declaration of Independence affirms that people have “unalienable rights” to be secured by governments “deriving their just powers from the consent of the governed.” The Preamble to the Constitution reiterates that “We the People … do ordain and establish this Constitution.” And the Tenth Amendment reminds us that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Of course this is all familiar ground, or should be, to our nation’s leading news reporters and commentators. Yet it is commonplace to speak of states’ rights. Federalism questions, like that at issue in Arizona v. United States, are routinely described as contests between federal power and states’ rights. “States’ rights” was the rallying cry of southern states fighting against integration in the ’50s and ’60s, as it has been, more recently, of western states objecting to the dominating influence of federal land ownership.
But describing Arizona’s defense of S.B. 1070 as a “states’ rights” claim distorts the issue before the Supreme Court. Arizona has no right to protect its borders or to assist in the enforcement of federal immigration laws. Rather, it has the power to do both, if the people of Arizona have so agreed and if Congress, acting within its constitutional powers, has not preempted such state actions.
The case is about the allocation of powers in our federal system, not about rights. Describing Arizona’s argument as a rights claim gives it moral stature it does not merit, which is why the states themselves have often resorted to explicit claims of states’ rights.
Of course there is no prospect of eliminating “states’ rights” talk from our public discourse, but we should at least be wary of attributing more to states’ rights claims than they warrant. Giving rights status to state government power claims risks ignoring what is at stake in every federalism dispute — namely the legitimate rights of individual citizens. State governments, no less than the federal government, are a constant threat to individual rights. The constitutional separation of powers between the state and national governments is an important protection of liberty. Let’s not confuse the question by attributing rights status to the coercive powers of state governments.
Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.