Antonin Scalia's partly concurring and partly dissenting opinion in Arizona v. United States is not a simple prejudiced, racist misreading of the laws of the United States. It is as close to treason as one can get in the United States of America without actually, as the Constitution defines treason, "levying war against them, or in adhering to their enemies."
Justice Scalia begins his argument by asserting "The United States is an indivisible 'Union of sovereign States.' Highlander v. La Plata River & Cherry Creek Ditch Co. 305 U.S. 92, 104 (1938)." That individual States are not sovereign is obvious from hundreds of Supreme Court Decisions, even infamous ones like Dred Scott. Scalia's argument is totally dependent on presenting careful selections from U.S. history as if they were strong precedents.
In fact the cases and historic examples he uses have been discredited, or have only minor significance. Given his attitude, it is surprising that Scalia did not cite the declarations of independence of the States that joined the Confederacy, and then forget to remind us that the Confederate States lost the Civil War and had no Supreme Court ever ruled that they had a right to declare independence.
Scalia even cites the (pre-Constitution) Articles of Confederation, neglecting that they were superceded by our Constitution, which created a nation with a federal system in which the national government, including its Supreme Court, are the supreme law of the land.
My opposition to Scalia's opinion is not meant to detract from the rights of States, and of the People, and of the limitations of the power of the central government outlined in the Constitution. It is not a problem for me when Scalia or any American argues for states rights when they actually exist. Scalia goes much further: he joins the rebels of the Confederacy, using their very arguments, and asserting boldly each individual State is sovereign.
Justice Scalia cites the Kentucky and Virginia Resolutions to support his views, as did the rebels of the Confederacy. These Resolutions are part of our history, but they amount to an opinion that was not ultimately supported by our people or government. Not by most individual states most of the time, not by any Congress, never by a President (not even by their authors, Jefferson and Madison, once they became Presidents), and not by any Supreme Court justice except the rebel Scalia. States cannot judge laws passed by Congress (and signed by a President) to be unconstitutional. That judgment is a duty of the Supreme Court.
A Supreme Court judge is not supposed to cite the losing sides of arguments as precedents. True, the Supreme Court occasionally overrules precedent, as when Brown v. Board of Education began correcting prior decisions that had limited the human rights of non-white citizens. Scalia, in Arizona v. United States, is not simply re-interpreting the Constitution, straightening out some flaw in its prior application. He is attempting to re-write history, law, and the Constitution, and to break up the United States into 50 separate nations.
At the beginning of Section II Scalia writes "One would conclude from the foregoing that after the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigration, but no doubt about the power of the States to do so." But one's conclusion would be based on Scalia's editing of history to distort the whole cloth of law.
Scalia only reluctantly accepts that the federal government can control immigration "not because of the Naturalization Clause but because it is an inherent attribute of sovereignty no less for the United States than for the States."
So we see the rebel's reasoning clearly: Sovereignty is Supreme, and Scalia and his gang of right-wind legal thugs are to be the interpreters of the meaning of Sovereignty. Does Sovereignty mean trampling on human rights? To Scalia it does. Does it mean trampling on the U.S. Constitution? That is apparent from Scalia's opinion.
After falsely declaring each individual state to be Sovereign (in which case there is no real need for a United States) Scalia claims the case was "about a federal law going to the core of state sovereignty: the power to exclude."
Scalia would exclude illegal immigrants from Arizona. That is not a radical opinion. The problem is the basis of his opinion. Scalia earlier stated who can be removed by a sovereign State: "certain persons, or for certain particular purposes, according as he may think it to the advantage of the state," "obnoxious aliens" (even perhaps bearing Green Cards), "paupers, vagabonds," "persons with contagious diseases," and "freed blacks."
In other words, Scalia would exile anyone Scalia did not like. And a State could exile anyone it did not like. Perhaps Jews, Arabs, Blacks, Hispanics, homosexuals, atheists and agnostics, or the unemployed. Perhaps a state ruled by the Republican Party would exile Democratic Party members. The sick and disabled might be cast out. It all depends on who controls a State.
This is madness. Preaching this poison, which is done all too much within the United States of America, is protected by our rights to freedom of speech and freedom of the press. Sitting on the Supreme Court trying to rule based on this poison is not protected.
Antonin Scalia has exceeded the bounds of his appointment. He should resign. If he does not resign, he should be impeached. If Congress fails to impeach him, human rights in this nation will be gravely in danger of disappearing.