Friday, September 14, 2007

What does the constitution say about immigration?

The question has come up about whether a State in this Union has the right to create and enforce its own internal immigration laws, and I think this begs an answer...

I have my own view of the subject, of course, and this view of mine is liable to come out at some point along the way. Indeed, it has come out before elsewhere, but I'd like to discuss the topic here at Web's.

I'm definately not one of those "roll over and just take it, that's the way it is" kind of fellows, which is probably fairly obvious to some of you. So, when someone says to me that my State, for instance, cannot defend itself against an invasion by illegals because federal law prohibits it, I don't necessarily just accept that. I can give you a prime example here...

I recently sent an email to one of my State legislators (young fella, seems nice enough'n'all) asking whether he and the legislature were preparing to battle for our State's new immigration law. In reply he basically informed me that "the Legislature has done all it can do in crafting the law, now it's up to the courts to determine whether it'll stand." To me, this legislator has already conceded defeat. He is saying that we (the State Legislature) may suspect that the federal government has abdicated its responsibility, and if our suspicions are correct, then we have the authority to take up the slack for our citizens.

But who determines whether the State legislature's suspicions about the fed are correct? Apparently the fed, according to this legislator.

Now, I don't know whether this is the general position among the members of our State legislature. Since this individual is a democrat, and our State Congress is majority Republican, I would venture a loose guess that it's probably not the general view shared by the majority, at least not to the extent that this legislator seems to hold the view. But I certainly could be wrong.

Given that example, which is probably a pretty good measure of what State legislators believe across the country, on what principle do they found this belief?

The U.S. Constitution is deafeningly silent on the issue of immigration. In the original, Congress is given authority to establish a uniform rule of naturalization, Article I, Section 8. That being about the extent of what the constitution says concerning immigration, and that only by inference, it seems to me that we'd have to look elsewhere to determine whether what its silence seems to imply is in actuality the case.

Fortunately we're not left totally in the dark on the subject, or to our own devices in assuming that its relative silence on the subject means this, that, or the other. In Federalist #42, Madison discusses briefly what was intended by this phrase "The Congress shall have establish a uniform rule of naturalization." Says he:

"The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of the Confederation, it is declared ``that the FREE INHABITANTS of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of FREE CITIZENS in the several States; and THE PEOPLE of each State shall, in every other, enjoy all the privileges of trade and commerce,'' etc. There is a confusion of language here, which is remarkable. Why the terms FREE INHABITANTS are used in one part of the article, FREE CITIZENS in another, and PEOPLE in another; or what was meant by superadding to ``all privileges and immunities of free citizens,'' ``all the privileges of trade and commerce,'' cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination of FREE INHABITANTS of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of FREE CITIZENS of the latter; that is, to greater privileges than they may be entitled to in their own State: so that it may be in the power of a particular State, or rather every State is laid under a necessity, not only to confer the rights of citizenship in other States upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term ``inhabitants'' to be admitted which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each State, of naturalizing aliens in every other State. In one State, residence for a short term confirms all the rights of citizenship: in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity; and thus the law of one State be preposterously rendered paramount to the law of another, within the jurisdiction of the other. We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several States, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. What would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to residence and citizenship, within the State proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted, of too serious a nature not to be provided against. The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the United States."

(More to come later)