David, you're absolutely right that we should look to the structural safeguards in our Constitution, and you're right that states retained the power to resist tyranny being imposed by federal officials. That is why the Tenth Amendment emphasized that federal officials have only the limited "powers" that the People "delegated to the United States by the Constitution," and other powers were (by the Constitution) "reserved to the States respectively, or to the people."
But precision and accuracy of terminology are crucial. It's important not to go too far and merely trade state tyranny for federal tyranny. It also weakens your position to argue either that "states are sovereign" or that they have "plenary police powers." Neither assertion is true, and it's important to understand why.
You're right that lawyers and judges commonly throw around the expression "plenary power," but they're clearly wrong to do so. Such assertions are false. Nobody has "plenary power" under our Constitution. Instead, various officials, state or federal, legislative, executive or judicial have "jurisdiction" over various matters or processes.
It's easy to defeat the state sovereignty argument by invoking Article VI of Constitution. The Supremacy Clause and the Oath Clause, state laws establishing oaths to support our Constitution (and the Preamble and Article I's Necessary and Proper Clause) establish and emphasize that state governments clearly are not sovereign. Those parts of our Constitution (and the President's oath and federal law establishing oaths to support our Constitution) equally clearly establish that the federal government is not sovereign. Instead, the People are sovereign, as Justice James Wilson and Chief Justice John Jay emphasized in 1793 in Chisholm v. Georgia (https://www.oyez.org/cases/1789-1850/2us419) and as many SCOTUS justices have emphasized, e.g., in Alden v. Maine in 1999 (https://www.oyez.org/cases/1998/98-436) and in Citizens United in 2010 (https://www.oyez.org/cases/2008/08-205).
It's also easy to defeat the "plenary police powers" argument. The principle at work in the division and arrangement of powers in the concepts called federalism (dividing powers between state and federal governments) and the separation of powers (dividing powers between legislative, executive and judicial branches) are designed to ensure nobody anywhere ever has plenary powers over anything.
"Plenary" means "absolute," and absolute power leads to tyranny. One overarching purpose of our original Constitution was to deprive states of plenary power (which states actually did have before our Constitution was ratified in 1788). James Madison and others explained the principle at work.
In Federalist No. 48, James Madison quoted Thomas Jefferson in Jefferson's "Notes on the State of Virginia" (which were written before the Virginia Constitution, but which continued to apply to the Virginia Constitution because of its defects):
"All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. . . . An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others."
Remedying the dangerous defects in state constitutions was the primary reason for the push for a national constitution. So Madison emphasized: "It will not be denied, that [all] power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it."
In Federalist No. 51, Madison emphasized that the first and most fundamental truth about the "separate and distinct exercise of the different powers of government" is that it was implemented in our Constitution because it is "essential to the preservation of liberty." Of course, "each department should have a will of its own" but we must never forget that all "executive, legislative, and judiciary" authority is "drawn from the same fountain of authority, the people."
In Federalist No. 47, Madison elaborated on why powers were divided as they were in our Constitution:
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many" (no matter how they are given or usurp such power) "may justly be pronounced the very definition of tyranny." "[T]he preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu."
"Montesquieu" was famous for emphasizing the following. "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers." "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. " "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR."
The very problem we're having with Trump is that he pretends that nobody's authority but his matters. He pretends to have the powers to make, interpret and enforce laws so that he can do pretty much whatever he wants. Our Constitution was structured with federalism, separation of powers and the Supremacy Clause and Oath Clauses of Articles II and VI to discourage, prevent and punish Trump's usurpations of power.
Jack, your Madison citations are correct. The problem: you’re explaining constitutional theory while Trump murders people on camera.
Separation of powers only works when actors respect it. When agents operate under secret memos, claim immunity that doesn’t exist, and move suspects across state lines to evade prosecution…Montesquieu isn’t preventing tyranny. He’s describing what’s already happening.
Argentina had constitutional protections. Courts. Lawyers citing theory. 30,000 disappeared anyway.
Constitutional architecture matters only if people with guns choose to follow it.
Right now, they’re not.
The question isn’t what Madison wrote.
It’s what happens when power ignores the structures he designed.
Johan, it's clearly not a "problem" to explain how our Constitution was designed to work and how it actually works merely because "Trump murders people on camera." The whole point of explaining how our Constitution was designed to work and how it actually works is to show that something can and should be done about Trump and his killers violating our Constitution.
You're making the same mistake as people who say that provisions of law or provisions of our Constitution are (or should be) "guardrails." Guardrails are physical barriers that physically prevent or help prevent conduct. Laws and constitutions simply aren't physical barriers. They're legal and psychological barriers.
Provisions of law are like (they are communicated by) speed limit signs, traffic lights and the lines on a multi-lane road with traffic going both ways. They work only to the extent that people abide by them or are influenced by them or they are enforced by other people. But people flouting or ignoring the foregoing (violating any given law or committing any given crime) don't in any way mean those laws and those signs of laws are irrelevant. The law remains the law, but if people don't understand how the law works, they can't use it to protect themselves or us.
The killers on ICE who killed Good and Pretti can and should be prosecuted criminally for the murders they committed. The thugs who violently attacked Pretti repeatedly should be prosecuted criminally. The First, Second and Fourth Amendments didn't physically protect Good or Pretti, but they (and copious SCOTUS precedent) established that the conduct of the killers of Good and Pretti and the guys who attacked Pretti clearly violated rights secured by our Constitution.
They committed the crimes in 18 U.S.C. 241, 242 or 371. Those laws stand for the principle that federal employees who abuse or usurp powers to violate rights secured by federal law or our Constitution should not, do not and cannot have and immunity for their misconduct.
Johan, you're dead wrong in asserting that "Constitutional architecture matters only if people with guns choose to follow it." The whole point of the First Amendment--the first amendment made to our Constitution almost immediately after it was ratified--was to emphasize that we have the power and the right to think and express and communicate thoughts and associate and assemble to influence how our public servants purport to serve our interests. That's literally the whole point of voting and petitioning government for a redress of grievances (including via litigation), which are particular kinds of expression, association and assembly.
"Johan, you're dead wrong in asserting that "Constitutional architecture matters only if people with guns choose to follow it." "
It kind of is, actually.
Since Trump and his Heritage Foundation Masters refuse to "follow the rules", we need to use Any Means Necessary to CRUSH Them...and as Lincoln said to Joe Hooker, "risk the dictatorship".
Jack, you’re quoting the First Amendment while federal agents murder people exercising it.
Alex Pretti assembled. He petitioned for redress of grievances. He expressed dissent. ICE shot him ten times.
The First Amendment doesn’t protect you when the regime operates outside constitutional constraints. It protects you when courts enforce it and agents fear consequences. Right now, agents believe they have immunity, courts are slow, and the regime moves suspects across state lines to avoid jurisdiction.
You’re describing how the system **should work.
I’m describing how it **actually works when power decides rules don’t apply.
Argentina had constitutional rights too. Free speech. Assembly. Petition. Lawyers filed motions citing them while 30,000 people disappeared. The Mothers of Plaza de Mayo assembled every Thursday, and the regime killed some of them anyway.
Constitutional rights exist on paper until enforced by institutions willing to constrain power. When those institutions fail or refuse, the paper doesn’t protect you. Resistance does. Community does. Making the cost too high does.
Minneapolis forced tactical retreat not because courts vindicated constitutional rights, but because 50,000 people in minus-29-degree weather made continuing too expensive.
That’s not cynicism. That’s how power actually works when norms collapse.
Best of luck to you and your rulebook.
The people in Minneapolis aren’t waiting for courts to vindicate their rights…
First, you (wrongly) asserted that "The First Amendment doesn’t protect you when the regime operates outside constitutional constraints." As I emphasized earlier, it's not a guardrail. It doesn't afford any physical protection. The protection and power are legal and psychological.
Second, you described people exercising the very rights and freedoms secured (protected and encouraged) by the First Amendment. You (rightly) recognized that "Resistance does [work]. Community does. Making the cost too high does."
"Minneapolis forced tactical retreat not because courts vindicated constitutional rights, but because 50,000 people in minus-29-degree weather made continuing too expensive."
"That’s how power actually works when norms collapse."
Jack, your logic has a fundamental flaw: you’re claiming I contradicted myself, but you’re confusing what happened with why it happened.
You quoted me saying “The First Amendment doesn’t protect you when the regime operates outside constitutional constraints” and then “50,000 people forced tactical retreat.”
That’s not a contradiction. That’s the exact point.
Those 50,000 people succeeded despite the regime violating their First Amendment rights: pepper spraying them, shooting them, calling them terrorists, claiming they had no right to be there. The regime didn’t respect their constitutional protections. The people imposed consequences anyway through numbers and cost.
Your logical fallacy is confusing correlation with causation.
The First Amendment didn’t protect those protesters. Their collective action did. They cited the First Amendment while organizing, but the regime violated it with impunity. What stopped the regime wasn’t constitutional text, but the political and operational cost of continuing.
You’re also committing the appeal to authority fallacy:
treating constitutional text as if it has intrinsic enforcement power. It doesn’t. The Constitution is enforced by institutions willing to constrain power. When those institutions fail, the text alone protects nothing.
Argentina had constitutional rights to assembly. They assembled anyway. The regime killed them anyway. The Constitution didn’t save them. Organized resistance eventually did, but only after 30,000 disappeared.
Your rulebook only works when people with guns respect it. In Minneapolis, they didn’t. The protesters won anyway, not because the Constitution protected them, but because they made the cost unbearable.
Best of luck citing Federalist Papers while agents operate under secret memos claiming immunity. The people defending their neighbors aren’t waiting for your constitutional theory to vindicate them.
Johan, you should re-read David's piece here. His point was that our Constitution definitely does protect us by permitting state governments to prosecute federal officials including the killers on ICE. If you don't know how our Constitution works and why, you can't understand how it protects people. In this country, laws and constitutions do protect people from abusive purported public servants.
Obviously, laws permitting the punishment of murder do not and cannot directly and physically prevent anyone from murdering anyone else. But the prospect of prosecution, punishment and public censure do protect people from murder. They help considerably to discourage most people from committing murder. Why do you find that hard to understand?
Johan, you apparently just don't understand the concept of having a constitution put into writing and ratified by the people. Again, you're dead wrong in your misrepresentation that "The First Amendment didn’t protect those protesters." Of course, it did. As I emphasized earlier, constitutional protections are not guardrails. They don't afford any physical protection. The protection and power are legal and psychological.
The reason the people succeeded in opposing the abuse of federal powers in Minneapolis was, in significant part, because the First and Second Amendments expressly protected and encouraged the kind of conduct engaged in by Pretti and a multitude of others.
Johan, again you're dead wrong (twice). I'm not merely "describing how the system **should work" and you're definitely not "describing how it **actually works when power decides rules don’t apply."
The point of David's piece here was to show that federal employees violating our Constitution (including the killers on ICE) can be and should be prosecuted by state authorities. David's right. But to understand why, it's necessary to understand the fundamentals (the "first principles") about how our Constitution divides and allocates power and jurisdiction and why.
This was a good read but Mr Lurie was being unduly cautious when he said that the public was begining to turn against Trump's immigration thuggery. Even before the killing of the heroic Mr Pretti multiple opinion polls found Trump's approval rating on immigration was in the negative double digits. ICE and its conduct was rejected by clear majorities with near crushing numbers in the all important 'independents' population.
Things will only get worse now, and even if the floor for ICE's public standing has been reached the extremely high profile killing of Mr Pretti will only harden attitudes amongst those who have turned against ICE and the Border thugs.
I say may the state of Minnesota go full throttle on the legal avenue. It may succeed and if nothing else will help keep in the public eye events that Trump would like everyone to forget about.
David, your constitutional analysis is correct on paper. But you’re missing what actually happens when regimes operate outside constitutional constraints.
Argentina had a constitution. Courts heard habeas corpus petitions. Lawyers filed motions. Judges occasionally ruled against the dictatorship. None of it stopped 30,000 disappearances, because the regime operated paramilitaries outside judicial reach.
You write that “state indictments appear all but inevitable” and courts will “compel the federal government” to provide evidence. Based on what? The regime already:
Refused state investigators access to crime scenes
Moved shooters out of state to evade jurisdiction
Declared federal immunity that doesn’t legally exist
Used DOJ to threaten prosecutors instead of investigating killings
The Constitution only works if people with power choose to follow it. When they don’t: when agents believe secret memos override judicial warrants, when they murder on camera and claim immunity, when they transfer suspects across state lines to avoid prosecution;
the question isn’t what the law says. It’s what power allows.
You’re analyzing this as if norms still constrain behavior. They don’t. The regime isn’t worried about losing in court eventually. They’re counting on “eventually” being too late to matter.
Minnesota’s resistance matters…the protests, the pressure, forcing tactical retreat. But not because courts will hold anyone accountable. Because the cost of continuing became too high.
That’s not federalism protecting Americans from tyranny. That’s raw power meeting resistance, not legal structures enforcing themselves.
The two doctrines usually used in Tenth Amendment cases are commandeering and spending clause. While there are elements of both here, these were applied in the past when the feds withheld funds coercively, or required state governments to do some act diverting state resources.
Here there is unprecedented situation of an actual invasion over objection of governor. So this violates core of 10th A and may require a new doctrine. Commandeering doctrine was judicially created. It’s ok.
David, you're absolutely right that we should look to the structural safeguards in our Constitution, and you're right that states retained the power to resist tyranny being imposed by federal officials. That is why the Tenth Amendment emphasized that federal officials have only the limited "powers" that the People "delegated to the United States by the Constitution," and other powers were (by the Constitution) "reserved to the States respectively, or to the people."
But precision and accuracy of terminology are crucial. It's important not to go too far and merely trade state tyranny for federal tyranny. It also weakens your position to argue either that "states are sovereign" or that they have "plenary police powers." Neither assertion is true, and it's important to understand why.
You're right that lawyers and judges commonly throw around the expression "plenary power," but they're clearly wrong to do so. Such assertions are false. Nobody has "plenary power" under our Constitution. Instead, various officials, state or federal, legislative, executive or judicial have "jurisdiction" over various matters or processes.
It's easy to defeat the state sovereignty argument by invoking Article VI of Constitution. The Supremacy Clause and the Oath Clause, state laws establishing oaths to support our Constitution (and the Preamble and Article I's Necessary and Proper Clause) establish and emphasize that state governments clearly are not sovereign. Those parts of our Constitution (and the President's oath and federal law establishing oaths to support our Constitution) equally clearly establish that the federal government is not sovereign. Instead, the People are sovereign, as Justice James Wilson and Chief Justice John Jay emphasized in 1793 in Chisholm v. Georgia (https://www.oyez.org/cases/1789-1850/2us419) and as many SCOTUS justices have emphasized, e.g., in Alden v. Maine in 1999 (https://www.oyez.org/cases/1998/98-436) and in Citizens United in 2010 (https://www.oyez.org/cases/2008/08-205).
It's also easy to defeat the "plenary police powers" argument. The principle at work in the division and arrangement of powers in the concepts called federalism (dividing powers between state and federal governments) and the separation of powers (dividing powers between legislative, executive and judicial branches) are designed to ensure nobody anywhere ever has plenary powers over anything.
"Plenary" means "absolute," and absolute power leads to tyranny. One overarching purpose of our original Constitution was to deprive states of plenary power (which states actually did have before our Constitution was ratified in 1788). James Madison and others explained the principle at work.
In Federalist No. 48, James Madison quoted Thomas Jefferson in Jefferson's "Notes on the State of Virginia" (which were written before the Virginia Constitution, but which continued to apply to the Virginia Constitution because of its defects):
"All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. . . . An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others."
Remedying the dangerous defects in state constitutions was the primary reason for the push for a national constitution. So Madison emphasized: "It will not be denied, that [all] power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it."
In Federalist No. 51, Madison emphasized that the first and most fundamental truth about the "separate and distinct exercise of the different powers of government" is that it was implemented in our Constitution because it is "essential to the preservation of liberty." Of course, "each department should have a will of its own" but we must never forget that all "executive, legislative, and judiciary" authority is "drawn from the same fountain of authority, the people."
In Federalist No. 47, Madison elaborated on why powers were divided as they were in our Constitution:
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many" (no matter how they are given or usurp such power) "may justly be pronounced the very definition of tyranny." "[T]he preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu."
"Montesquieu" was famous for emphasizing the following. "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers." "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. " "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR."
The very problem we're having with Trump is that he pretends that nobody's authority but his matters. He pretends to have the powers to make, interpret and enforce laws so that he can do pretty much whatever he wants. Our Constitution was structured with federalism, separation of powers and the Supremacy Clause and Oath Clauses of Articles II and VI to discourage, prevent and punish Trump's usurpations of power.
Jack, your Madison citations are correct. The problem: you’re explaining constitutional theory while Trump murders people on camera.
Separation of powers only works when actors respect it. When agents operate under secret memos, claim immunity that doesn’t exist, and move suspects across state lines to evade prosecution…Montesquieu isn’t preventing tyranny. He’s describing what’s already happening.
Argentina had constitutional protections. Courts. Lawyers citing theory. 30,000 disappeared anyway.
Constitutional architecture matters only if people with guns choose to follow it.
Right now, they’re not.
The question isn’t what Madison wrote.
It’s what happens when power ignores the structures he designed.
— Johan
Johan, it's clearly not a "problem" to explain how our Constitution was designed to work and how it actually works merely because "Trump murders people on camera." The whole point of explaining how our Constitution was designed to work and how it actually works is to show that something can and should be done about Trump and his killers violating our Constitution.
You're making the same mistake as people who say that provisions of law or provisions of our Constitution are (or should be) "guardrails." Guardrails are physical barriers that physically prevent or help prevent conduct. Laws and constitutions simply aren't physical barriers. They're legal and psychological barriers.
Provisions of law are like (they are communicated by) speed limit signs, traffic lights and the lines on a multi-lane road with traffic going both ways. They work only to the extent that people abide by them or are influenced by them or they are enforced by other people. But people flouting or ignoring the foregoing (violating any given law or committing any given crime) don't in any way mean those laws and those signs of laws are irrelevant. The law remains the law, but if people don't understand how the law works, they can't use it to protect themselves or us.
The killers on ICE who killed Good and Pretti can and should be prosecuted criminally for the murders they committed. The thugs who violently attacked Pretti repeatedly should be prosecuted criminally. The First, Second and Fourth Amendments didn't physically protect Good or Pretti, but they (and copious SCOTUS precedent) established that the conduct of the killers of Good and Pretti and the guys who attacked Pretti clearly violated rights secured by our Constitution.
They committed the crimes in 18 U.S.C. 241, 242 or 371. Those laws stand for the principle that federal employees who abuse or usurp powers to violate rights secured by federal law or our Constitution should not, do not and cannot have and immunity for their misconduct.
Johan, you're dead wrong in asserting that "Constitutional architecture matters only if people with guns choose to follow it." The whole point of the First Amendment--the first amendment made to our Constitution almost immediately after it was ratified--was to emphasize that we have the power and the right to think and express and communicate thoughts and associate and assemble to influence how our public servants purport to serve our interests. That's literally the whole point of voting and petitioning government for a redress of grievances (including via litigation), which are particular kinds of expression, association and assembly.
"Johan, you're dead wrong in asserting that "Constitutional architecture matters only if people with guns choose to follow it." "
It kind of is, actually.
Since Trump and his Heritage Foundation Masters refuse to "follow the rules", we need to use Any Means Necessary to CRUSH Them...and as Lincoln said to Joe Hooker, "risk the dictatorship".
Jack, you’re quoting the First Amendment while federal agents murder people exercising it.
Alex Pretti assembled. He petitioned for redress of grievances. He expressed dissent. ICE shot him ten times.
The First Amendment doesn’t protect you when the regime operates outside constitutional constraints. It protects you when courts enforce it and agents fear consequences. Right now, agents believe they have immunity, courts are slow, and the regime moves suspects across state lines to avoid jurisdiction.
You’re describing how the system **should work.
I’m describing how it **actually works when power decides rules don’t apply.
Argentina had constitutional rights too. Free speech. Assembly. Petition. Lawyers filed motions citing them while 30,000 people disappeared. The Mothers of Plaza de Mayo assembled every Thursday, and the regime killed some of them anyway.
Constitutional rights exist on paper until enforced by institutions willing to constrain power. When those institutions fail or refuse, the paper doesn’t protect you. Resistance does. Community does. Making the cost too high does.
Minneapolis forced tactical retreat not because courts vindicated constitutional rights, but because 50,000 people in minus-29-degree weather made continuing too expensive.
That’s not cynicism. That’s how power actually works when norms collapse.
Best of luck to you and your rulebook.
The people in Minneapolis aren’t waiting for courts to vindicate their rights…
they’re defending them in the streets.
— Johan
Former Foreign Service Officer
Johan, you're contradicting yourself (and our Constitution).
First, you (wrongly) asserted that "The First Amendment doesn’t protect you when the regime operates outside constitutional constraints." As I emphasized earlier, it's not a guardrail. It doesn't afford any physical protection. The protection and power are legal and psychological.
Second, you described people exercising the very rights and freedoms secured (protected and encouraged) by the First Amendment. You (rightly) recognized that "Resistance does [work]. Community does. Making the cost too high does."
"Minneapolis forced tactical retreat not because courts vindicated constitutional rights, but because 50,000 people in minus-29-degree weather made continuing too expensive."
"That’s how power actually works when norms collapse."
Jack, your logic has a fundamental flaw: you’re claiming I contradicted myself, but you’re confusing what happened with why it happened.
You quoted me saying “The First Amendment doesn’t protect you when the regime operates outside constitutional constraints” and then “50,000 people forced tactical retreat.”
That’s not a contradiction. That’s the exact point.
Those 50,000 people succeeded despite the regime violating their First Amendment rights: pepper spraying them, shooting them, calling them terrorists, claiming they had no right to be there. The regime didn’t respect their constitutional protections. The people imposed consequences anyway through numbers and cost.
Your logical fallacy is confusing correlation with causation.
The First Amendment didn’t protect those protesters. Their collective action did. They cited the First Amendment while organizing, but the regime violated it with impunity. What stopped the regime wasn’t constitutional text, but the political and operational cost of continuing.
You’re also committing the appeal to authority fallacy:
treating constitutional text as if it has intrinsic enforcement power. It doesn’t. The Constitution is enforced by institutions willing to constrain power. When those institutions fail, the text alone protects nothing.
Argentina had constitutional rights to assembly. They assembled anyway. The regime killed them anyway. The Constitution didn’t save them. Organized resistance eventually did, but only after 30,000 disappeared.
Your rulebook only works when people with guns respect it. In Minneapolis, they didn’t. The protesters won anyway, not because the Constitution protected them, but because they made the cost unbearable.
Best of luck citing Federalist Papers while agents operate under secret memos claiming immunity. The people defending their neighbors aren’t waiting for your constitutional theory to vindicate them.
Johan, you should re-read David's piece here. His point was that our Constitution definitely does protect us by permitting state governments to prosecute federal officials including the killers on ICE. If you don't know how our Constitution works and why, you can't understand how it protects people. In this country, laws and constitutions do protect people from abusive purported public servants.
Obviously, laws permitting the punishment of murder do not and cannot directly and physically prevent anyone from murdering anyone else. But the prospect of prosecution, punishment and public censure do protect people from murder. They help considerably to discourage most people from committing murder. Why do you find that hard to understand?
Johan, you apparently just don't understand the concept of having a constitution put into writing and ratified by the people. Again, you're dead wrong in your misrepresentation that "The First Amendment didn’t protect those protesters." Of course, it did. As I emphasized earlier, constitutional protections are not guardrails. They don't afford any physical protection. The protection and power are legal and psychological.
The reason the people succeeded in opposing the abuse of federal powers in Minneapolis was, in significant part, because the First and Second Amendments expressly protected and encouraged the kind of conduct engaged in by Pretti and a multitude of others.
Johan, again you're dead wrong (twice). I'm not merely "describing how the system **should work" and you're definitely not "describing how it **actually works when power decides rules don’t apply."
The point of David's piece here was to show that federal employees violating our Constitution (including the killers on ICE) can be and should be prosecuted by state authorities. David's right. But to understand why, it's necessary to understand the fundamentals (the "first principles") about how our Constitution divides and allocates power and jurisdiction and why.
Thank you, Mr. Lurie. I’ll be watching to see what happens at bovino’s next posting.
This was a good read but Mr Lurie was being unduly cautious when he said that the public was begining to turn against Trump's immigration thuggery. Even before the killing of the heroic Mr Pretti multiple opinion polls found Trump's approval rating on immigration was in the negative double digits. ICE and its conduct was rejected by clear majorities with near crushing numbers in the all important 'independents' population.
Things will only get worse now, and even if the floor for ICE's public standing has been reached the extremely high profile killing of Mr Pretti will only harden attitudes amongst those who have turned against ICE and the Border thugs.
I say may the state of Minnesota go full throttle on the legal avenue. It may succeed and if nothing else will help keep in the public eye events that Trump would like everyone to forget about.
David, your constitutional analysis is correct on paper. But you’re missing what actually happens when regimes operate outside constitutional constraints.
Argentina had a constitution. Courts heard habeas corpus petitions. Lawyers filed motions. Judges occasionally ruled against the dictatorship. None of it stopped 30,000 disappearances, because the regime operated paramilitaries outside judicial reach.
You write that “state indictments appear all but inevitable” and courts will “compel the federal government” to provide evidence. Based on what? The regime already:
Refused state investigators access to crime scenes
Moved shooters out of state to evade jurisdiction
Declared federal immunity that doesn’t legally exist
Used DOJ to threaten prosecutors instead of investigating killings
The Constitution only works if people with power choose to follow it. When they don’t: when agents believe secret memos override judicial warrants, when they murder on camera and claim immunity, when they transfer suspects across state lines to avoid prosecution;
the question isn’t what the law says. It’s what power allows.
You’re analyzing this as if norms still constrain behavior. They don’t. The regime isn’t worried about losing in court eventually. They’re counting on “eventually” being too late to matter.
Minnesota’s resistance matters…the protests, the pressure, forcing tactical retreat. But not because courts will hold anyone accountable. Because the cost of continuing became too high.
That’s not federalism protecting Americans from tyranny. That’s raw power meeting resistance, not legal structures enforcing themselves.
— Johan
Former Foreign Service Officer
The two doctrines usually used in Tenth Amendment cases are commandeering and spending clause. While there are elements of both here, these were applied in the past when the feds withheld funds coercively, or required state governments to do some act diverting state resources.
Here there is unprecedented situation of an actual invasion over objection of governor. So this violates core of 10th A and may require a new doctrine. Commandeering doctrine was judicially created. It’s ok.