Arizona: Constitution Not Welcome Here, Either

Apologies in advance:  It's the Constitution and some history again.

Not even a little interested?

Arizona so agrees with you.

So does The Scaley Supreme Court, as it is known on this Blog.  Readers of Empty Glass Full (or Scaley's own My Glass Full Yours Just Wrong) have gained, as a result, a special insight into our Supreme Court's take on the US Constitution.

The basic logic of Scaley's definitive Originalistic Constitutional interpretaion is this:  If it wasn't there for the thinking when the Founding Fathers were originally do the thinking in 1787, it isn't covered by the Constitution, or, in the case of the famously dubbed The Top Ten Amendments of 1789.  The 14th Amendment, important in the Arizona discussion, would only apply to stuff around in 1866, 1868 at the latest.

The easy part first:  There was no Arizona in 1787 or 1789.  The United States didn't even own the property then, and didn't even know there was anything worth buying beyond the Mississippi.  Therefore, the original Constitution and The Bill of Rights can not apply directly to Arizona.

Bad as that may sound, it acutally is wonderful news, since there were only a few dozen Mexicans and Indians living thereabouts and this is all about giving them no rights at all.

So what about Arizona by 1866?  Deceptively good question.

In 1848, the US had made a friendly deal with Mexico in which the US got the norther half of Mexico and Mexico got to keep what was left of its army, its capital and a warehouse full of tequilla.  In 1853, the US bought another sliver of Mexico, including Tuscon, Yuma and half the Gila River, and referred to that little purchase as the Territory of Arizona. They picked the a name by joining two Indian words meaning "Last Little Water Before LA".

The final shape of Arizona was set when it developed multiple-personality disorder.  It became two territories during the Civil War (or the War to Promote Gray History Month, depending on your governor), one organized by the Union in 1863 without slaves and the other claimed by the Confederates beginning in 1861 with as many slaves as you could get to grow cotton in the desert.  The Confederacy gave up its claim to Arizona along with its claim to the beautiful city of Richmond, all those valuable slaves and everything else in 1865.

At the time the Fourteenth Amendment was submitted for adoption in 1866, Arizona was a mere territory, putting off statehood until three years after Barry Goldwater was born, probably unnaturally, in 1909.  This being so, the Framers of the 14th Amendment knew about Arizona, vaguely if at all, as a territory but not a real state.

Under the Scaley view, the 14th Amendment can not apply to the State of Arizona, since there was no more a State of Arizona than a Prius, an iPad or a Wonder Bra when the amendment was kicked around and put down in writing.  Don't even try to suggest that the amendment applies just because Arizona The Territory did exist in 1868.  Assuming, arguendo (as Scaley might himself write in the Latin of the cross), that were true, just try and find a Territory named Arizona today.  Go on and good luck.  There isn't one.

Thus, neither the Constitution, the Bill of Rights, nor the 14th Amendment apply to the State of Arizona.  Arizona can do what it damned will pleases.  The State of Arizona could, if it wanted to, outlaw anybody doing anything, including pastry asthmatics swinging clubs at the sand or tall black guys shooting hoops indoors, but it would like to stick to stopping, frisking and, generally, outlawing the beyond-tan walking the streets or riding to off-the-books day jobs in crowded pick-ups.

For now.