Alexander Hamilton (Wikimedia Commons)

The 1800 election?  Thomas Jefferson won the presidency in the so-called “Jeffersonian Revolution.” But what made that election “revolutionary?”

First, it was the first transfer of power in American politics—in this case, from the Federalists to the Anti-Federalists. Second, it was the first presidential election where political parties played a major role.

Third, it began the country’s move away from Classical Republicanism and toward a true democracy. Before the 1800 election, the elite of the country—the Washingtons, the Hamiltons, the Madisons (for a time), and the Adams’—had run the country.

But something was beginning to happen in the country that the Federalists elite missed and that caused them to lose the presidency and ultimately led to their demise. What was it? Demographics.

Jefferson won the 1800 election, and in the election of 1804, he crushed his opponent, Charles Cotesworth Pinckney, a fellow Southerner, in the Electoral College by a margin of 162 to 14.  Thereafter, the Federalist Party faded away to the point that in the 1820 election, they didn’t even nominate a candidate.

The Anti-Federalists better understood the impact of parties, and they formed political “tickets” before the Federalists did.

Alexander Hamilton was instrumental in bringing partisan politics to New York City during the lead-up to the 1800 election. But other Federalists held true to the traditional Classic Republicanism, which shunned the idea of even campaigning for office.

What was the Federalists’ reaction to being voted out of national office? They went home and concentrated on local offices—never to be heard from again on the national scene.

What role did demographics play in this result?

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The Federalists failed to appreciate the emergence of “middling men,” which may be thought of in today’s parlance as the “middle class.” As Gordon Wood describes in his book, Empire of Liberty, the country’s population at the end of the 18th century was exploding.

Between 1800 and 1810 the national population increased from 5 million to 7 million. During the same time, the population in Ohio went from 45,000 to 230,000: over a five-fold increase. Additionally, the population was moving westward. Territories were becoming states bringing many new voters into the voting booth.

The people in those areas tended to be much more independent than Easterners; they were less loyal to the traditional leadership (the elite), and they voted for people “like them.”

Two other developments resulted in middling men having increasing political power.

First, property requirements for voting were being reduced and second, more “non-elitist” men were acquiring property.  The combined result was a seismic shift of political power away from the Federalist doctrine and candidates, and toward an American democracy reflecting “the people.”

Fast forward to 2012. If anything is clear from this election, it is the fundamental shift away from the “white male voter” and the emerging—perhaps dominating—power of voter groups—or “factions” as James Madison described in his Federalist No. 10.

After the 1800 election, the Federalists were reduced to local elections and eventually faded away. They ignored changing voter demographics.

If present-day Republicans do the same, history may, indeed, repeat itself. Yes, they may be able to win local, district-wide elections, but state-wide and national contests will be beyond their reach.

Donald Applestein is a retired attorney and an experience guide in the National Constitution Center’s Public Programs Department.

The statements at issue:

“Today’s decision by the U.S. Supreme Court is a victory for the rule of law…After more than two years of legal challenges, the heart of SB 1070 can now be implemented in accordance with the U.S. Constitution.”

– Arizona Governor Jan Brewer, in a statement titled “U.S. Supreme Court Decision Upholds Heart of SB 1070,” June 25, commenting on the Justices’ 5-3 decision on the Arizona immigration law. (Only eight Justices took part because Justice Elena Kagan disqualified herself because of her former role in the federal government.)

“The Supreme Court on Monday delivered a split decision on Arizona’s tough immigration law, upholding its most hotly debated provision but blocking others on the grounds that they interfered with the federal government’s role in setting immigration policy.”

– Adam Liptak, New York Times reporter, in a news story June 25, under the headline “Blocking Parts of Arizona Law, Justices Allow Its Centerpiece.”

“Regarding the [Arizona] law’s central and most controversial element – requiring officers to inquire into the immigration status of anyone picked up for some other violation – the ruling was definitive, indeed unanimous.  No liberal-conservative divide here.  The smackdown [of the federal government challenge] was 8-0.”

– Charles Krauthammer, columnist, in an op-ed commentary July 6, in The Washington Post, commenting on the immigration decision as it related to President Obama’s leadership; the column was titled “The incompetent imperial presidency.”

We checked the Constitution, and…

Since Chief Justice John Marshall’s famous decision in Marbury v. Madison in 1803, the Constitution has been understood to give the Supreme Court the ultimate authority to strike down a federal or state law as unconstitutional.   But the failure to use that power does not always mean that the law the justices have in front of them has been upheld.

There appears to be a lingering interpretation that the court has “upheld” Arizona’s controversial “show me your papers” requirement for undocumented immigrants living in that state.  But whether that assessment came on the day of the ruling, or later, is at least an over-simplification, and might be said to be simply wrong.

Qualification and nuance can limit what a Supreme Court ruling on a constitutional issue really means, and yet there is sometimes a strong yearning – as in sports journalism – to say simply who “won” and who ”lost.”   (Some media did get the court’s health care ruling wrong by declaring too soon who had “won” or “lost.” But that’s another story.)

To get the answer to the question of whether the key part of Arizona’s law has been “upheld” (as opposed to not being struck down), it is first useful to talk about what kind of constitutional challenge has been made in an effort to strike down a law such as this one.

There are “facial” challenges, and there are “as-applied” challenges.  A “facial” challenge means that the challenger is arguing that the law is unconstitutional in the very words it uses — what it actually says – and that there is no real-world factual situation in which it can be enforced.  Such challenges come before a law even takes effect, and they are not often successful

An “as-applied” challenge, however, comes after a law has gone into effect, and the challenger contends that, in a given set of actual facts, the law is invalid and cannot be enforced any time those same facts are present.

In law books as in news stories, to say that a law has been “upheld” usually should mean that it has withstood a constitutional challenge once and for all, whether it confronted a “facial” challenge or one based on how the law was “applied.”

Here is the situation with Arizona’s immigrant control law, SB 1070: four of its provisions were confronted by a “facial” challenge, but only one argument was made against those four.  The government argued that the state law was “preempted” – that is, that it trespassed upon powers that the federal government has over immigration.  That was a “facial” challenge because, if the government was right, Arizona could not enforce that law, ever.  (Under the Constitution’s Supremacy Clause, a federal law always trumps a state law on a given topic if they clash.)

Three of the four parts of the Arizona law met that fate: they were struck down – period — on the premise that they interfered with federal enforcement of immigration laws no matter how they might be enforced.

The fourth provision was always the most controversial, and it was, indeed, properly considered the law’s “centerpiece.”  That is SB 1070’s Section 2, which requires Arizona police, any time they arrest someone for any reason and they believe the person might be in Arizona illegally, to check with federal officials whether that is true, and to hold the person until they are satisfied about legal status.

The Court did not strike it down “facially,” saying that the law had not yet been interpreted by state courts and that such review might save it from later constitutional challenges.  The Court declared: “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”   And the opinion recited several situations that might raise constitutional problems with actual enforcement.

In short, it was not upheld; its ultimate constitutional fate was, in essence, put off.   There are already challenges going on in lower courts; perhaps the most significant is that the law will lead to “racial profiling” because officers will detain individuals just because they look like foreigners.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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A protester against Arizona's strict immigration policy

On Monday, the Court struck down three of the four provisions in question in the Arizona immigration law, known as S.B. 1070.

It retained the part that requires police to ask for documentation if they have a “reasonable suspicion” if someone is in the United States illegally.

And the Court also left the door fully open for an appeal on the identification part of the law.

“At this stage, without the benefit of a definitive interpretation from the state courts it would be inappropriate to assume [that provision] will be construed in a way that creates a conflict with federal law,” said Justice Anthony Kennedy. “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” Kennedy wrote.

A separate legal action, Friendly House v. Whiting, is in the court system and it challenges S.B. 1070 on grounds of racial profiling.

In either event, the immigration issue doesn’t seem to be fading away as the presidential campaign heats up.

Arizona Gov. Jan Brewer was quickly out with a statement that the ruling was a victory for her state because it preserved the “heart” of S.B. 1070.

Brewer also said state law enforcement would need to be vigilant to make sure documentation checks weren’t cases of racial profiling.

“Law enforcement will be held accountable should this statute be misused in a fashion that violates an individual’s civil rights,” she said.

President Barack Obama said, “ I am pleased that the Supreme Court has struck down key provisions of Arizona’s immigration law.” But he also warned states about racial profiling when enforcing document checks.

“At the same time, I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally,” he said.

Mitt Romney said the decision represented another miscue from the Obama administration.

“President Obama has failed to provide any leadership on immigration,” Romney said in a statement. “This represents yet another broken promise by this President. I believe that each state has the duty — and the right — to secure our borders and preserve the rule of law, particularly when the federal government has failed to meet its responsibilities. As Candidate Obama, he promised to present an immigration plan during his first year in office. But four years later, we are still waiting.”

Immigration is back at the forefront of the presidential campaign, after President Obama signed an executive order to allow some illegal immigrants to temporarily stay in the United States.

Romney and other Republicans are still reacting to Obama’s move, with Romney trying to remain a states-rights immigration advocate while connecting with Latino voters.

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A protester against Arizona's strict immigration policy

The Supreme Court is expected to issue its decision on Arizona’s immigration law next week, and normally, it would be the biggest attention-getter in the mainstream media.

However, the epic battle over health-care reform will get most of the press next week, even though the immigration issue won’t go away in the 2012 presidential campaign.

The Arizona law, known as S.B. 1070, requires police to ask for documentation if they have a “reasonable suspicion” if someone is in the United States illegally.

S.B. 1070 makes it a state crime to be in the United States and seek work without proper documentation, and it provides for the arrest of people who qualify for deportation.

The Obama administration opposes S.B. 1070 as conflicting with federal laws.

If you are keeping track at home, President Barack Obama threw a curve ball at the Republicans by issuing an executive order last week, letting some illegal immigrants stay in the country temporarily.

Parts of the Obama order mirrored efforts underway by Marco Rubio, the U.S. senator from Florida, to let people stay in the country under certain circumstances.

Rubio and Obama’s opponent, Mitt Romney, ripped Obama for the timing of his executive order, which they believe undercut long-term reforms.

Then, Rubio’s autobiography hit bookshelves on Tuesday. In An American Son, Rubio said in a theoretical situation that he would try to enter the U.S. illegally, if his family were living in deplorable conditions in another country.

Rubio is a popular figure in the Latino community, while Romney badly trails Obama among Latino voters.

While Rubio has been a long-rumored potential running mate for Romney, his candidacy was called into question as the week progressed.

On Wednesday, the Republican National Committee released a video blaming Obama for the economic problems faced by Latino workers.

And later this week, Obama and Romney will speak at the annual conference of the National Association of Latino Elected and Appointed Officials outside Orlando, Fla.

The Supreme Court’s ruling on Arizona v. United States might not settle the issue, according to an analysis from Reuters.

A separate legal action, Friendly House v. Whiting, challenges S.B. 1070 on grounds of racial profiling and that case has yet to be settled in the courts.

Reuters said the Supreme Court could settle Arizona v. United States but also ask the judge in the Friendly House v. Whiting case to put S.B. 1070’s enforcement on hold until the second case is settled.

In either event, the immigration issue doesn’t seem to be fading away as the presidential campaign heats up.

Our sharped-eyed friends at Yahoo! News reported on the book passage, as the story was also picked up on The Drudge Report and ABC News on Tuesday. (The actual quote in question appears in a review posted Monday night on tampabay.com.)

In An American Son, Rubio answers a strictly hypothetical question: Would he break U.S. immigrations laws if he lived in a country with conditions so bad that he couldn’t feed his family and escaping to America was their only hope?

“Many people who come here illegally are doing exactly what we would do if we lived in a country where we couldn’t feed our families,” Rubio writes in An American Son, which went on sale today.  “If my kids went to sleep hungry every night and my country didn’t give me an opportunity to feed them, there isn’t a law, no matter how restrictive, that would prevent me from coming here.”

Rubio’s views on immigration differ in some ways Republican party leaders. His parents left Cuba in the 1950s but he is also a staunch Republican.

The presumptive GOP nominee, Mitt Romney, has taken a strong stand against illegal immigration.

“A strong legal immigration system is an integral component of what makes America exceptional,” Romney says on his official campaign site.

The immigration issue jumped to the top of the political hot list last week, when President Barack Obama issued an order allowing some illegal immigrants to stay in the United States.

Rubio criticized the way Obama used his presidential powers to offer a short-term solution to a long-term problem, matching similar criticism from Romney.

“Today’s announcement will be welcome news for many of these kids desperate for an answer, but it is a short term answer to a long term problem,” Rubio said last week. He also said Obama circumvented the Constitution to deal with a problem best dealt with by Congress.

In another report about Rubio on Tuesday, ABC News’ Jonathan Karl says that Rubio isn’t being vetted as a potential running mate by Romney’s campaign team.

The Romney camp started background checks on prospective vice presidential candidates in April.

That wouldn’t preclude the Romney campaign from considering Rubio, since the presidential nominee doesn’t usually name a running mate until the eve of the convention, which in this case is in Rubio’s home state in late August.

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Lyle Denniston looks at the chances of success for a threatened lawsuit from GOP Rep. Steve King over the Obama administration’s latest immigration-policy moves.

The statement at issue:

“Americans should be outraged that President Obama is planning to usurp the constitutional authority of the United States Congress and grant amnesty by edict to 1 million illegal aliens….I believe the American people will reject President Obama for his repeated efforts to violate the constitutional separation of powers.”

– Iowa Republican Rep. Steve King, in a statement June 15 reacting to the Obama Administration just-announced plan to postpone potential deportation of undocumented immigrants who came to the U.S. as children and have remained law-abiding.  Congressman King later announced, on the Mike Huckabee radio program, that he is planning to”bring a lawsuit and seek a court order to stop implementation of this policy.”

We checked the Constitution, and…

Article III, the part of the Constitution that gives the federal courts their powers, is a major barrier to Rep. King’s lawsuit, and very likely will lead to its dismissal in court.  Article III regularly has been the basis for federal courts’ refusal to get into the middle of “separation of powers” conflicts between members of Congress and the White House.

No federal court has authority to decide any lawsuit unless it involves an actual “case or controversy,” and that means that the lawsuit must have been filed by someone who will suffer some specific kind of legal injury from government action, and it must have been the type of injury that can be fixed by a court ruling.

It has seldom been the case that a member of Congress, feeling that that member’s legislative powers or those of the House or Senate as a whole have been compromised or undermined, has been able to prove actual legal harm.   The almost routine reaction of the courts has been that battles won or lost in the legislative arena are not to be mediated by the courts.   And, at times, the courts have added in such a case that an individual may not sue if that person has no grievance that is nto shared by virtually everybody in the country — in Rep. King’s case, a claim of presidential usurpation of congressional power.

The congressman’s lawsuit will also encounter in court the very specific efforts that the Obama Administration had made to insulate what was being done from court review, by framing the temporary reprieve of deportation of young undocumented immigrants as an exercise of traditional Executive power: that is, how to enforce an existing law day to day.

“Now let’s be clear,” the President said at the White House: “This is not amnesty, this is not immunity.  This not a path to citizenship.  It’s not a permanent fix.  This is a temporary stopgap measure that lets us focus our resources wisely…”   The White House also was careful to point out that the President himself had taken no action; he issued no Executive Order, leaving the enforcement decision to be made by the Homeland Security officials who carry out immigration laws.

Homeland Security Secretary Janet Napolitano echoed those remarks: “The memorandum confers no substantial right, immigration status or pathway to citizenship.  Only the Congress, acting through its legislative authority, can confer these rights.  It remains to the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law.”

These arguments are a form of a traditional claim of criminal prosecutors when they decide for or against going ahead with a specific charge: it is their choice to make.   (A recent example of this, of course, was the Justice Department’s refusal to seek a new trial of former Senator John Edwards on charges of violating campaign finance laws after the first effort largely failed.)  Being in the U.S. illegally is itself a crime, and forced deportation can result.  DHS two years ago adopted a policy of giving top priority on who gets deported to those who have committed crimes or pose threats to public safety.  Under the new policy, no young person in that category is eligible for the reprieve.

Courts customarily do not second-guess the use of “prosecutorial discretion,” unless that has been done in a “malicious” way that is somehow discriminatory or punitive in a special way.

What rankled Rep. King, and other members of Congress, was that Congress itself  had refused last year to pass the so-called “DREAM Act” that would have achieved the same kind of deportation reprieve, so – they argued — the President was defying congressional will in going ahead on his own.

But the failure to pass legislation, or the explicit refusal to enact a bill, does not limit Executive discretion in enforcing laws already on the books.  Congress does have the power, of course, to pass a new piece of legislation to undo what DHS did last week.  But the votes are not there to do that and, in any event, such a bill would be subject to presidential veto even if it had cleared Congress.

Republicans, of course, were also troubled about the politics of the new policy: they said it was timed to have an impact on this year’s election, in a blatant bid by the President for support from Hispanic voters.  But that, too, is an argument that courts do not attempt to settle.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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Of course, Google, the company, has very little to say about the election as a matter of policy. (Google might serve up a few political ads to paying bidders, but it doesn’t have an editorial policy that would endorse any candidate).

But the company’s Insights for Search tool shows what people are searching for on Google, dating back to 2004. And because Google goes to great lengths to make sure search popularity can be fairly compared over time periods, we can see how “hot” topics have been for the past week, month, or any time period going back  to 2004.

We picked five broadest campaign topics that had a high level of interest and weeded out a few that were too general or too specific  (like “jobs,””same-sex marriage” and “health care”).

Here is how the recent trend looks for the five issues–gas prices, immigration, health insurance, gay marriage and employment–over the past 12 months:

Insights for Search takes the biggest traffic spike, among the five topics, and compares every other search to it.

Employment is constantly at the top of minds for Google searchers, especially during the work week. But the two stories with the biggest spikes were the passage of New York’s same-sex marriage law in June 2011 and President Barack Obama’s support of similar measures last week.

High gasoline prices saw a big spike in February, but they have also seen a steady drop in interest in the past month.

Two other issues – health insurance and immigration – have seen continued interest over the past 12 months.

So in Google’s scale of search interest, here is how the five topics rank over the past year:

1. Employment: 80
2. Immigration: 30
3. Health Insurance: 29
4. Gas Prices: 20
5. Gay Marriage: 13

Of course, Google search isn’t a proxy for how people will vote in November, but with a huge sample group, it does show a constant interest in certain subjects.

For the past 30 days, the Obama announcement was the dominant search for a few days, while interest in gas prices was running on empty.

Scott Bomboy is the editor-in-chief of Constitution Daily.

News headlines, politicians, and hot-button issues come and go, but one 225-year-old document continues to emerge in our conversations about our nation’s most important questions and challenges: the Constitution. The Constitution is a big buzzword for Election 2012, and more than ever, citizens, pundits, and politicians are turning to the Constitution for answers–and sometimes ammunition, as they try to prove the Constitution is on

Here’s a brief look at the top constitutional news stories and commentaries from this week.

The Constitution and… gay marriage

In an interview with ABC News, President Barack Obama became the first sitting president to affirm his support of gay marriage. The announcement came shortly after Vice President Joe Biden said he supported gay marriage. Plus, North Carolina became the latest state to amend its state constitution to ban gay marriage–as well as civil unions.

The Constitution and… Facebook “likes”

According to U.S. District Judge Raymond Jackson, “liking” something on Facebook does not qualify as speech and is not protected by the First Amendment.

In the case presented in the Eastern Virginia district court, six people working as employees of the Hampton, Virginia, Sheriff B.J. Roberts say Roberts fired them for supporting his opponent. This included clicking the “like” button on the opponent’s Facebook page. The workers argue that being fired for this action is a violation of their free-speech rights.

Some scholars, such as Eugene Volokh of UCLA, speculated that the ruling could be appealed–and overturned–in a higher court. Volokh told the Associated Press, “It is conveying a message to others. It may just involve just a couple of mouse clicks, or maybe just one mouse click, but the point of that mouse click … is to inform others that you like whatever that means.”

The Constitution and… treason

At a gathering in Ohio, Mitt Romney did not attempt to correct a woman who said that President Obama “should be tried for treason.”

The woman commented: “We have a president right now who is operating outside the construction of our Constitution. And I do agree he should be tried for treason. But I want to know what you are going to be able to do to help restore balance between the three branches of government and what you’re going to be able to do to restore our Constitution in this country?”

Romney replied, “As I’m sure you do, I happen to believe that the Constitution was not just brilliant, but probably inspired.”

Romney later clarified that he does not believe President Obama should be tried for treason.

The definition and punishment for treason is outlined in Article III, Section 3, of the Constitution:

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”

The Constitution and… drones

This week Wired magazine detailed an Air Force policy that raises questions about the “incidental” surveillance of U.S. citizens. Essentially, Wired explains, “if an Air Force drone accidentally spies on an American citizen, the Air Force will have three months to figure out if it was legally allowed to put that person under surveillance in the first place.”

The Constitution and… immigration

On Monday, the 10th U.S. Circuit Court of Appeals ruled in U.S. v. Huitron-Guizar that illegal immigrants do not have the right to own guns because they have only limited protection under the Constitution.

In other immigration news, the Department of Justice is suing Maricopa County Sheriff Joe Arpaio, known as the “toughest sheriff in America,” for discrimination against Latinos.

Thomas Perez, assistant attorney general for the civil-rights division of the Department of Justice, told the Daily Beast, “This is about public safety. It’s about the Constitution.”

But wait, there’s more

Check out the curated links to news and commentary on constitutional issues around the web at Delicious.com or on the sidebar of Constitution Daily. (Note: Links are not endorsements.)

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Holly Munson is a programs coordinator at the National Constitution Center and the assistant editor of Constitution Daily.

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: state authority to exclude people who have no legal right to be in the U.S.

The statement at issue:

“The state has no power to close its borders to people who have no right to be there?…Arizona is not trying to kick out anybody that the Federal Government has not already said do not belong here…The Constitution recognizes that there is such a thing as state borders and states can police their borders…What does sovereignty mean if it does not include the ability to defend your borders?”

–Justice Antonin Scalia, in questions and comments during the Supreme Court’s hearing April 25 on the constitutionality of Arizona’s law, S.B. 1070, on the regulation of undocumented immigrants living in the state.

We checked the Constitution, and…

It may be that, when the Supreme Court rules on state power to monitor and restrict the activities of people who have entered the U.S. illegally and remain without permission, the Justices will give states additional authority. But it seems doubtful that they will find in the Constitution a grant of state power to “police their borders” in the way that Justice Scalia seemed to assume that they could.

One of the Court’s prior rulings that several of the other Justices indicated will have an impact on their ruling on S.B. 1070 is the 1941 decision in Hines v. Davidowitz. In that decision, the Court said: “That the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization, and deportation, is made clear by the Constitution, was pointed out by the authors of The Federalist in 1787, and has since been given continuous recognition by this Court.” There were dissenters in that case, but not on that basic point.

Even if one accepts that federal “supremacy” in this field is not exclusive, and that there is some residual authority left to the states, it would not be found in the one part of the Constitution that Justice Scalia specifically cited as the basis for his comment about policing borders.

That is the clause in Article I that forbids any state–without Congress’s consent–to impose fees for imports or exports. There is a limiting phrase, though, and that is what Justice Scalia cited. The phrase says that states may impose a fee if that is “absolutely necessary” to carry out their “inspection laws.” That proviso, the Justice commented, allows a state to “inspect incoming shipments to exclude diseased materials.”

The phrase, however, does not seem to apply to human beings who have entered a state, even those who have entered illegally. Arizona has not claimed authority to exclude them under its inspection laws.

It may be that Justice Scalia was talking only about parallel authority to “kick out” someone whom Congress has already determined to be here illegally, merely by the fact of their entry without permission. But there is no Supreme Court interpretation that makes deportation a shared duty of national and state governments. Those who wrote S.B. 1070 have said it encourages “self-deportation,” but they have not claimed authority to force that outcome.

And it could be that he was talking about parallel authority to protect a state from a foreign invasion. Indeed, some supporters of S.B. 1070 have made that very argument. But it is not clear that the defense of the Nation’s borders is a constitutionally shared responsibility of national and state governments, unless state troops are summoned into national service under the Constitution’s Article I to help “suppress insurrections and repel invasions.”

Moreover, the Justice’s comments seemed to imply that those who “do not belong here” do not, in fact, have any constitutional rights that would protect them from a state’s official restraints upon them. Even the dissenters in the Hines decision in 1941 commented: “The Fourteenth Amendment guarantees the civil liberties of aliens as well as of citizens against infringement by state action in the enactment of laws and their administration as well.”

One of the issues that the Supreme Court will not be deciding, at this stage in the Arizona case, is whether some parts of S.B. 1070 are invalid because they may lead to racial discrimination against undocumented immigrants. When lower courts move to sort that out, the determining factor probably will not be whether a state has power to exclude them, but rather how it deals with them while they are in this country.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

News headlines, politicians, and hot-button issues come and go, but one 225-year-old document continues to emerge in our conversations about our nation’s most important questions and challenges: the Constitution. The Constitution is a big buzzword for Election 2012, and more than ever, citizens, pundits, and politicians are turning to the Constitution for answers–and sometimes ammunition, as they try to prove the Constitution is on

Here’s a brief look at the top constitutional news stories and commentaries from this week.

1. The Constitution and…Immigration

On Wednesday, the Supreme Court began hearing oral arguments for Arizona v. United States, the challenge of Arizona’s controversial immigration law, S.B. 1070.

The federal government is arguing that it has the last word in immigration law, and that Arizona overstepped its power. Supporters of the Arizona argue that the state was making a state law for a unique state problem not sufficiently addressed by the federal government.

2. The Constitution and…Veeps

As the Republican party has unofficially accepted Mitt Romney as its nominee, speculation has begun about his VP pick; the list of potentials includes popular rabble-rousers like Chris Christie and fresh-faced up-and-comers like Marco Rubio. Meanwhile, in the world of television, HBO launched a perfectly-timed new series, Veep, with Julia Louis-Dreyfus as the title character.

3. The Constitution and…Myanmar

Earlier this month, Myanmar (formerly known as Burma), the southeast Asian country that has been under military rule for decades, held parliamentary elections. Nobel Peace Prize winner Daw Aung San Suu Kyi and the opposition party she led, the National League for Democracy, swept the election.

This week, however, representatives of the National League for Democracy refused to take their newly won seats in parliament in protest of the phrasing of the lawmakers’ oath, which says they will “safeguard the constitution.” The party wants to change the constitution because it grants extensive powers to the military, and wants to replace the word “safeguard” to “respect.”

In the U.S. Constitution, the president and other federal officials promise to “preserve, protect, and defend the Constitution.” Fortunately, that hasn’t prevented Americans from amending the Constitution. But in Myanmar, the war over words could threaten the fragile beginnings of democracy.

But wait, there’s more

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Holly Munson is the Programs Coordinator for Public Engagement at the National Constitution Center.