Horowitz: States can declare martial law on citizens but can’t stop noncitizens from voting

· April 30, 2020  
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A broken clock is right twice a day, but our judiciary is always wrong, as it has perfectly twisted fundamental rights inside out and has flipped state and federal powers upside down.

We have finally discovered a power that the courts feel a state does not have. At a time when states are violating our rights to life, liberty, and property, restricting free movement, regulating interstate commerce and travel, and forming interstate compacts – all against the most basic foundations of our Constitution – the courts have finally stepped in to limit state powers. A federal court has ruled states cannot … ask for proof of citizenship to vote.

On Wednesday, the Tenth Circuit Court of Appeals ruled that Kansas cannot require proof of citizenship at voter registration to ensure that noncitizens don’t vote, pursuant to a law duly passed by the state legislature in 2011. The court reiterated a lower court ruling that somehow this violates the phantom Equal Protection Clause of the 14th Amendment and that the state interest does “not justify the burden imposed on the right to vote.” The two judges (the third passed away) concocted their own law that states must first “show that a substantial number of noncitizens registered to vote” before enacting such measures.

To be clear, Kansas was not stripping the vote from anyone eligible to vote and merely required the most basic verification in order to protect the sovereignty of all citizens, as is required for so many other public or private benefits. States have full control over voter qualifications, according to the Constitution, voting is not quite an inalienable right, and the state is enacting the most narrowly tailored act to achieve the vital interest of protecting the franchise.

There is no greater interest in protecting the vote than ensuring noncitizens aren’t voting. This is not some far-flung fear, but a prima facie concern. We have a record level of immigrants in this country, and the motor-voter laws seamlessly register anyone who signs up for a driver’s license with nothing more than a voluntary honor system for immigrants to self-report. If anything, noncitizens are often harmed by weak verification, because some unwittingly sign up to vote and then are subject to deportation for violating federal law.

Yet now an unelected federal judge can crush a basic state power. Keep in mind, it’s insane to suggest that requiring proof of citizenship is a burden, because, by definition, anyone who is a citizen has a birth certificate. This is even less of a “burden” than requiring photo ID at the polls. Although states provide ID for free, there is theoretically a small percentage of people who don’t have ID. However, every citizen has a birth certificate. If they can produce one, there is no burden, and if they are not a citizen, how can they get standing to sue?

Now hold that thought as you watch this video of a Calumet County, Wisconsin, cop following a woman to her home because her child had a playdate in someone else’s house.

“Are you aware that we’re in a stay-at-home order right now?” says the male deputy. “I don’t need to explain that to you? Because I can if you need me to. … Your daughter is going to play at other people’s home and you’re allowing it to happen. … Stop having your kid go by other people’s home.”

Where are the lawsuits? A state can’t protect its vote from foreign nationals, but it can ban citizens from traveling to a neighbor’s home?

Yesterday, a Michigan judge refused to grant relief to plaintiffs who sued the governor’s order that prevented anyone from even visiting family or friends, without large gatherings. Judge Christopher Murray of the Michigan Court of Claims said that even these rights are “subject to reasonable regulation by the state” and that “those liberty interests are, and always have been, subject to society’s interests — society being our fellow residents.”

So, let’s get this straight. A state can’t simply place basic eligibility verification standards on voting or work requirements on Medicaid, but a state can restrict your movement entirely and shut down your way of life entirely. A state can potentially demand that you “show papers” to get approval to walk freely as “an essential worker,” but they can’t ask you to show proof of citizenship when you come to a state office to register to vote.

Where is the federal intervention when it’s actually warranted and actually violates the 14th Amendment? Remember, while extremely important, voting is not a fundamental inalienable right, like earning a living with one’s property and freedom of movement inside this country. Which is why there was a need for the 15th Amendment to ensure voting rights for freed slaves. Where is Attorney General Barr? Don’t just threaten lawsuits, file them immediately!

The 14th Amendment’s Privileges and Immunities Clause authorizes the federal government to enforce fundamental rights against the states violating them. Yet the same judges who fail to recognize these rights create new rights under the Equal Protection Clause.

In fact, Rep. James F. Wilson, R-Iowa, the chairman of the House Judiciary Committee back in the 1860s who helped draft the 14th Amendment, spoke emphatically that it was “establishing no new right, declaring no new principle.” “It is not the object of this bill to establish new rights, but to protect and enforce those which belong to every citizen,” declared Wilson in 1866.

These judges only protect the fictitious new rights of criminals and foreign nationals or concoct positive privileges, such as the “right” to ballot-harvest or have six weeks of early voting, but not the foundational rights to exist freely belonging to every citizen.

In the irony of all ironies, the same people who use the Equal Protection Clause to strip states of their basic powers have no problem with states allowing Walmart and Home Depot to remain open with 500 people, but to close a small business that has three people in it. These same people allow dog grooming shops to remain open and snitch on hair stylists who try to open after they are forcibly closed!

But, of course, requiring every voter to show proof of citizenship, something inherently universal among every eligible voter, is unequal!

What’s becoming clear is that the only people with access to the courts now are criminals, illegal aliens, and abortion clinics. We have a country where the basic understanding of a fundamental right has been contorted 180 degrees. Negative, inalienable rights – the right to remain free of government punishment for merely breathing – are crushed with impunity and without due process, while the nonexistent privilege to vote without having to show basic eligibility is now a God-given right.

It’s also evidently a right for insurance companies to get $12 billion in “risk corridors” bailout funding for which Congress explicitly blocked appropriation. The Supreme Court ruled in their favor 8-1 on Monday. So now the Supreme Court appropriates money too?

We have an illegitimate government. Courts insert themselves into everything they have no business adjudicating, yet they are absent in protecting real liberties of individual Americans when they have been attacked more than ever.

As Calvin Coolidge warned on Memorial Day 1927 at Arlington National Cemetery, “The integrity of the Union rests on the Constitution. Unless that great instrument is to be the supreme law of the land, we could have no Union worthy of our consideration.”

Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.