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The Confederate Lawyer
February 9, 2012

The Wagging Finger
by Charles G. Mills
fitzgerald griffin foundation

GLEN COVE, NY — Governor Jan Brewer has been criticized by some for an encounter on the tarmac of an Arizona airport with President Obama. She was photographed pointing — or wagging — a finger at him. The truth is that she was doing her duty to a degree that is rare among state governors today.

There is clearly bad blood between the two. The Obama administration is attacking the constitutionality of Arizona’s attempt to control criminal and disorderly illegal immigrants within its borders. Arizona, meanwhile, is joining with most other states in attacking the constitutionality of the centerpiece of Obama’s legislative achievements, the Stalinist scheme known as Obamacare.

The Arizona governor gave President Obama a written invitation to meet and to visit the Arizona-Mexican border. He apparently walked away without accepting it. Governor Brewer did her duty by wagging her finger at him and trying to correct him.

The criticism of Governor Brewer stems from a basic misunderstanding: Many people wrongly think that the president actually has the power to give orders to state governors. He does not. State governors are neither part of the federal government nor subordinate to it. They derive their powers, rather, from the sovereign people of their states.

Governor Brewer’s duty is thus to the people of Arizona. She is not a federal civil servant who must defer to Obama. Indeed, she must hold him duty bound to honor her state’s sovereignty — and correct him when he does not.

The limitations that the federal government can legitimately put on a state governor are few, and all authorized by express language in the United States Constitution. They are few and include, but are not limited to, the following: State governors cannot decree ex post facto punishments, decree corruption of blood, make paper money, deprive people of a fair trial, restrict voting rights on the basis of race, create a hereditary aristocracy, invalidate contracts, impose custom duties, or segregate public facilities.

These restrictions, however, do not come from the federal government, but from the sovereign people of the states. The people of each state are “free and independent by the grace of God,” as many official documents describe the people of the State of New York. The sovereign people place great restrictions on the power of the governor through the instrument of a state constitution. Governors actually do not have much power — and what power they do have truly belongs to the sovereign people of their states.

The president of the United States is entitled to a certain courtesy precedence over a state governor. For example more guns are fired when saluting a president than a governor. He has a higher diplomatic position than a governor. This is because all fifty states have decided voluntarily, in adhering to the Constitution, to exhibit the majesty and power of our nation as a union, not as individual states.

The courtesy precedence extended to the president should not be dispositive of his rank in constitutional questions with respect to the governors, however. Although the president is obviously the Commander in Chief of the Armed Forces, he does not command the state militias — the governors do. Certainly, he has exclusive power with the Senate to make treaties. He is also the chief executive and chief magistrate of the executive department of the federal government.

At the same time, he is the servant of the people of the United States. This is not a single conglomerate American people, but the people of each of the fifty states. History clearly proves this. Rhode Island did not become subject to the Constitution as soon as nine states ratified it, or as soon as the first Congress and president were elected, or as soon as federal judges were appointed and confirmed for the other twelve original states. It became a state only when it chose to ratify the Constitution and enter into the compact with the other states.

Of all fifty states, not one was simply established and imposed by the federal government. Each one entered the union by virtue of its voluntary application. The first Congress proposed a Constitutional amendment — one that was rapidly adopted — which made it express and explicit that every power not specifically delegated by the states to the federal government was “reserved to the states, respectively, or the people.” This language is clear: Sovereignty is in the people of the respective states, not of some conglomerate.

The president is elected by the Electoral College, which is chosen by state law by the people of each state separately. He represents the compact between the states. The governors, on the other hand, represent the people of their states. The president has a duty to correct a governor only when he or she violates a specifically delegated federal power. The governor, on the other hand, represents the full general power of the people of the state and must oppose any transgression against his or her people by a president illegitimately trying to expand federal power.

Jan Brewer has set the example. Let fifty hands wag fingers at the president whenever he tries to usurp power from the people of the states.

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The Confederate Lawyer column is copyright © 2012 by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com. All rights reserved.

Charles G. Mills is the Judge Advocate or general counsel for the New York State American Legion. He has forty years of experience in many trial and appellate courts and has published several articles about the law.

See his biographical sketch and additional columns here.

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