Constitutional Alternative to Secession

As a constitutional alternative to secession, states such as Texas, Arizona, New Mexico, California, and Oklahoma — each of which is literally being “invaded” in a constitutional sense by various Mexican criminal insurgencies (MCIs) and jihadists with access to weapons of mass destruction (WMD) — should consider entering into a self-defense “compact” between and among themselves pursuant to their explicitly reserved power to do so under Article I, Section 10, of the United States Constitution.

A case in point is the Nov. 13, 2012, sentencing of a former Saudi-sponsored student and would-be WMD jihadist in Texas.

Article I, Section 10, provides that, "No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."

While entering into a self-defense “compact” under Article I, Section 10, those states should also reaffirm their shared commitments to the principles underlying the Declaration of Independence and Constitution of the United States, starting with the core principles recently reaffirmed by the United States Supreme Court — ironically, in the court’s Obamacare/tax ruling — that our national government is one of limited and enumerated powers, and that each state retains its own sovereignty.

In the Supreme Court’s four interrelated opinions in National Federation of Independent Business v. Sebelius, seven justices found that the state Medicaid mandate portion of the Affordable Care Act (aka Obamacare) is unconstitutional. The chief justice explained, “As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by threatening existing Medicaid funding. Congress has no authority to order states to regulate according to its instructions.”

According to another Justice, “Seven members of the court agree that the Medicaid expansion, as enacted by Congress, is unconstitutional.”

The chief justice explained why the State Medicaid mandate portion of Obamacare is unconstitutional: “We have repeatedly characterized . . . spending clause legislation as much in the nature of a contract. The legitimacy of Congress’s exercise of the spending power thus rests on whether the state voluntarily and knowingly accepts the terms of the contract. Respecting this limitation is critical to ensuring that spending clause legislation does not undermine the status of the states as independent sovereigns in our federal system. That system rests on what might at first seem a counterintuitive insight, that freedom is enhanced by the creation of two governments, not one” (internal quotes and citations omitted).

This profound, even if at first counterintuitive, constitutional insight presents a timely practical manifestation of what C.S. Lewis coined as the “Principle of First and Second Things.”

First things are core values that define who we are. Second things, such as survival and money, are also very important.

The interrelated constitutional principles that our national government is one of limited and enumerated powers, and that each state retains its own sovereignty, are American first things. The survival of the United States of America as such — in contrast to the survival of the principles underlying its Declaration of Independence and Constitution — is a very important second thing.

If you only focus on second things, as important as they are, in the end you will fail to achieve those second things — and, in the process, you lose your first things. In the words of C.S. Lewis, “You can’t get second things by putting them first; you can get second things only by putting first things first.” (C.S. Lewis, “Time and Tide,” reprinted in "God in the Dock," 1942).

A more recent first things expert explained the principle even more bluntly, using the most basic of all second things to make the point: “The society that believes in nothing worth surviving for — beyond mere survival — will not survive.” (Peter Kreeft, "A Refutation of Moral Relativism: Interviews With An Absolutist," 1999).

Applying the same American “first things” explained by the chief justice in the Obamacare/tax ruling to the “imminent threat” posed by the ongoing invasion by the various MCIs and jihadists with access to WMD, both the physical security (a second thing) and the freedom (a first thing) of the citizens of Texas, Arizona, and Oklahoma, for example (others may also want to join), will be enhanced by a first things-focused self-defense compact among these “independent sovereigns in our federal system.” The key to these enhancements will be to keep “putting first things first.”

Of course, the underlying constitutional assumption for this scenario is that the national government continues to delay deployment of an effective national effort to repel the invasion.

Based on recent history and the ongoing fiscal cliff facing the national government, none of the 50 states should assume that the national government will do anything other than continue to delay deployment of an effective national effort to repel the ongoing invasion, which over the past two years has escalated, extending now into non-border states such as Oklahoma.

Two years ago, The Washington Times reported that, “The federal government has posted signs along a major interstate highway in Arizona, more than 100 miles north of the U.S.-Mexico border, warning travelers the area is unsafe because of drug and alien smugglers.

Also in 2010, the U.S. Department of Homeland Security reportedly issued a threat alert to police and sheriff’s deputies in Houston, Texas, to be on the lookout for a suspected member of the Somalia-based Al Shabaab terrorist group who might be attempting to travel into the United States through Mexico. According to the State Department, “Al-Shabaab (the youth) is a violent and brutal extremist group with a number of individuals affiliated with al-Qaida.”

In May 2010, Fox News reported in connection with the unsealing of an indictment in Texas federal court that "a Somali man, Ahmed Muhammed Dhakane, led a human smuggling ring that brought East Africans, including Somalis with ties to terror groups, from Brazil and across the Mexican border and into Texas,” and the separate indictment in Virginia of Anthony Joseph Tracy, who later pleaded guilty in U.S. District Court of “Conspiracy to induce Aliens to Enter the United States,” that, “Security experts say the push by illegal immigrants to try to fit in also could be the realization of what officials have feared for years: Latin American drug cartels are helping jihadist groups bring terrorists across the Mexican border.”

According to the court-filed affidavit supporting the indictment of Anthony Joseph Tracy, “who was born in Pennsylvania” and who “converted to Islam while in a U.S. prison in the 1990’s,” during a January 2010 interview “by FBI and ICE Special Agents[,] Tracy said that he helped approximately 272 Somalis travel illegally to the United States . . . by providing and manufacturing fake documents that are required to obtain Cuban visas, such as bank statements reflecting residency in Kenya . . . .”

The affidavit also indicates that, “Tracy was asked if he knowingly assisted any al-Shabaab members attempting to travel out of Kenya,” and that, “Tracy admitted that he was approached by al-Shabaab in Kenya, but he claimed that he refused to assist them.”

More recently, the Texas Department of Public Safety updated its five-year strategic plan, explaining that, "Texas faces far more insidious threats than it has in the past, to include ruthless Mexican cartels, violent transnational and statewide gangs  .  .  .  and international terrorist organizations who seek to destroy us and our way of life."

Even more recently, in June 2012 the U.S. Justice Department announced the indictment and arrest of seven Mexican drug cartel defendants in Oklahoma, New Mexico, California, and Texas, “including Los Zetas leader Miguel Angel Trevino Morales (aka “40”) and his brothers, Oscar Omar Trevino Morales (aka “42”) and Jose Trevino-Morales, in connection with a conspiracy to launder Los Zetas drug distribution proceeds by purchasing, training, breeding and racing American quarter horses in the United States.”

According to United States Attorney Robert Pitman, “The allegations in this indictment, if proven, would document yet another example of the corrupting influence of Mexican drug cartels within the United States, facilitated by the enormous profits generated by the illicit drug trade.”

Finally, on Nov. 13, 2012, Khalid Ali-M Aldawsari was sentenced to life in prison by the federal court in Amarillo, Texas, for “attempting to use a weapon of mass destruction.

Prosecutors say he had collected bomb-making material and researched possible targets, including the Dallas home of former President George W. Bush. A handwritten journal found in his apartment included notes that he believed it was time for ‘jihad,’ a Muslim term for holy war,” according to the Associated Press.

If the states affected by the ongoing invasion by the MCIs and jihadists with access to WMD were voluntarily to compact together on account of this ongoing invasion — and in so doing were to reaffirm their shared commitment to support and defend not only their physical territories but also our American “first things” against the invaders — who knows to what end such a voluntary, constitution-reaffirming compact among various sovereign states within the United States of America might lead?

One thing is for certain: unless the states and the American people start focusing more on our American “first things,” the United States of America as such will not survive.

Joseph E. Schmitz served as inspector general of the Dept. of Defense from 2002-2005 and is CEO of Joseph E. Schmitz, PLLC. Read more reports from Joseph E. Schmitz — Click Here Now.