Immigration, the Constitution, and Liberty
by <http://fff.org/author/tim-kelly/>Tim Kelly February 19, 2013
Immigration is one of those intractable wedge
issues. It is, for the most part, a problem
created by government meddling and therefore
any “solution” implemented by the government is
more likely to aggravate the situation than improve it.
First, let me state that I believe the federal
government to have no authority over immigration
except to create uniform laws of naturalization.
I readily concede that this view is far outside
the political mainstream, but it is consistent
with the text and original intent of the Constitution.
Article 1, section 8, clause 4 of the United
States Constitution empowers Congress to regulate
naturalization, which is the process of granting
citizenship to a foreign-born person. But the
clause is silent on immigration, which relates to residency, not citizenship.
Today “immigration” and “naturalization” are now
seen as being closely related, but the two words
had separate and distinct meanings when the
Constitution was ratified. In the 18th century,
the definition of naturalization was something
like “the act of investing aliens with the
privileges of native subjects,” while immigration
meant simply moving from one place to another.
And we shouldn’t forget that among the many
issues provoking America’s secession from the
British Empire was the attempt by King George III
to restrict westward immigration. Americans in
the 18th century wanted more land and the freedom
to move about, and they believed this particular
pursuit of happiness was being stymied by a
remote and arrogant central government. Sound familiar?
Given that the Constitution only grants the
federal government specific and enumerated
powers, and conspicuously lacking among those
powers is the authority to regulate immigration,
it stands to reason that such powers are retained
by the sovereign states. This was supposedly
clarified by the Tenth Amendment, which Thomas
Jefferson considered to be “the foundation of the
Constitution.” That amendment reads,
The powers not delegated to the United States by
the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.
And as Jefferson explained in the Kentucky Resolution of 1798,
Alien friends are under the jurisdiction and
protection of the laws of the State wherein they
are: that no power over them has been delegated
to the United States, nor prohibited to the
individual States, distinct from their power over citizens.
So a proper interpretation of the Constitution
puts the locus of the immigration debate at the
state level. Now, how the states decide to
resolve disputes relating to immigration is
another question entirely, but Washington should
really have no say in the matter. Nevertheless,
the federal government has sought to regulate
immigration since 1890, and the passage of time
has legitimized this usurpation in the minds of most Americans.
The U.S. Supreme Court, citing the supremacy
clause of the Constitution, has held that
the regulation of aliens is so intimately blended
and intertwined with responsibilities of the
national government that where it acts, and the
state also acts on the same subject, “the act of
Congress or treaty is supreme; and the law of the
state, though enacted in the exercise of powers
not controverted, must yield to it.” And where
the federal government, in the exercise of its
superior authority in this field, has enacted a
complete scheme of regulation … states cannot,
inconsistently with the purpose of Congress,
conflict or interfere with, curtail or
complement, the federal law, or enforce additional or auxiliary regulations.
But the supremacy clause only applies to those
powers pursuant to the Constitution. That is, it
applies only to Congress’s enumerated powers and
should not be construed as a grant of general
power, which would negate the very purpose of
writing a constitution. And, as pointed out
above, Congress was given authority to regulate
naturalization, not immigration.
Furthermore, the Constitution did not establish a
nation-state. What it did establish was a
confederation of sovereign states that had agreed
to delegate some of their powers to a general
government, primarily for purposes of mutual
defense and the creation of a common market. The
consolidation of the United States of America
into a nation-state in the 19th century had more
to do with the ambitions of northern politicians
than with any established constitutional or legal
process. That indeed was the whole point of the
great unpleasantness commonly referred to as the American Civil War.
Those demanding that the federal government
“secure the borders” are usually conservative
types who claim to favor a strict constructionist
view of the Constitution. Yet by advocating a
federal crackdown on illegal immigration, they
are supporting policies requiring a very broad
interpretation of federal power. When it comes to
immigration, they spurn Thomas Jefferson and embrace Alexander Hamilton.
They are also supporting policies that are
turning the country into a veritable police
state. For instance, take the recent
immigration-reform bill co-sponsored by Senators
John McCain and Charles Schumer. The bipartisan
plan calls for a massive increase in drones
flying over U.S. territory, spying on U.S.
citizens along the border and presumably within
the 100-mile “border zone” over which the
Department of Homeland Security (DHS) asserts
jurisdiction. These areas have been called
“Constitution-free zones” because border-patrol
agents operating within them are exempt from the
Fourth Amendment’s prohibition of unreasonable
searches and seizures. I might add that well over
50 percent of the U.S. population lives within a
“border zone,” which the DHS defines by proximity
to any national barrier, political or physical, including bodies of water.
How long will it be before the drones used to
police the borders are conscripted into other
law-enforcement functions such as drug
interdiction? Will these drones be armed, and if
so, will those operating them be given the
authority to fire on suspected drug smugglers?
After all, the War on Drugs is a war, and you
cannot afford to observe the niceties of due
process in wartime, or so the argument goes.
The McCain-Schumer plan also calls for the
creation of what would be in effect a national ID
card. Dubbed E-Verify, the program would likely
require Americans to have in their possession a
biometric card verifying their employment status.
(You gotta keep employers from hiring illegals,
lest the terrorists win.) The program would be
administered by DHS, which would maintain a
comprehensive database on all Americans, and
those operating it would decide whether one would
be permitted to work. Comprehensive database?
Permitted to work? So much for the right to
privacy and the pursuit of happiness.
What exactly is a stake in illegal immigration
that justifies this Orwellian nightmare?
Most if not all of the conventional arguments
against open immigration are a based on
misapprehensions and economic fallacies. There is
always the fear of foreigners and competition,
but such nativist attitudes are ironic for a
nation that was created by immigrants and
expanded so rapidly by gobbling up adjacent foreign territories.
This is not to suggest that there are no
challenges or inconveniences created by
immigration, but most of the recent problems
associated with it are consequences of various
federal government policies. For instance, the
easy-money policies of the Federal Reserve
created an artificial demand for foreign labor,
while federal welfare schemes like unemployment
insurance and food stamps made many jobs appear
unattractive to native-born Americans. Anyway,
the economic contraction that began in earnest in
2008 has largely solved this “problem,” as many
immigrants have now returned home for lack of
gainful employment here in the United States.
Now, some claim that illegal immigration puts an
unsustainable burden on the country’s
social-safety net and therefore government must
do something to curtail it. To the extent that
immigrants are able to access various welfare
programs, that is a problem, but it is one that
has been greatly exaggerated. Since 1996, illegal
immigrants have been prohibited from receiving
food stamps, housing assistance, Medicaid, and
Medicare-funded hospitalization. Moreover,
illegal immigrants contribute more in taxes than
they take away in benefits. All those illegals
working under fraudulent social-security cards
may be breaking the law, but they are also paying
the taxes that support that redistributive
program, the beneficiaries of which are
overwhelmingly native-born, white, middle-class Americans.
Now, illegals do still use government-provided
emergency medical care and public schools. But
the solution here is to privatize emergency
medical care and get rid of the public schools.
Charity in a free society should be voluntary,
and the government has no business educating
children, be they native-born or not.
I am reminded here of something the Old Rightist
and libertarian thinker Frank Chodorov said when
questioned on how to deal with the threat of
communists infiltrating the U.S. government. “How
to get rid of the communists in the government? Easy. Just abolish the jobs.”
A similar solution is available to the problem of
illegal immigrants accessing taxpayer-financed
welfare programs. Just abolish the programs.
Many argue that government control of immigration
is vital to national security. The borders need
to be “secured,” they say, to keep out terrorists
and others who may be entering the country intending to do harm.
As far as the risk of terrorism is concerned, it
would help matters a great deal if the U.S.
government ceased stirring up enmities abroad by
invading, occupying, and bombing other countries.
And the fact that all of the alleged 9/11
terrorists were in the country legally should
make us skeptical of the concept of tighter
border security. After all, what’s the point of
putting up with the indignities and
inconveniences of tighter border security if the
feds allow known terrorists into the country?
Furthermore, the argument for “securing” borders
woefully underestimates the practical
difficulties and possible effects of doing so.
Such an ambitious enterprise would require
closely screening millions of tourists, honest
workers, and businesspeople. It would also
require police-state tactics, as evidenced by the
increasing militarization of the country’s
borders. And as Ron Paul trenchantly pointed out
during his 2012 presidential campaign,
Every time you think about this toughness on the
border and ID cards and REAL IDs, think it’s a
penalty against the American people too. I think
this fence business is designed and may well be
used against us and keep us in. In economic
turmoil, the people want to leave with their
capital and there’s capital controls and there’s
people controls. Every time you think about the
fence … think about the fences being used against us, keeping us in.
At the time, Paul was roundly criticized for
these remarks. But I would suggest to Paul’s
critics that they pay closer attention to current
events before they dismiss the former congressman as being too alarmist.
The State Department has been accused of
intentionally making its passport application
process unreasonably burdensome. The IRS has
asserted the authority to revoke the passports of
Americans they claim have not paid all of their
federal taxes. And there is a bill in the U.S.
Senate that would impose financial penalties on
any American who renounces his citizenship. It
would appear the feds are intentionally making it
more difficult for Americans to go abroad. Why?
Open immigration is the logical extension of free
trade. By allowing people to move about freely
and compete for jobs, we all benefit from the
increased division of labor. As the saying goes,
“more hands make for lighter work.”
Unfortunately, this economic verity is often
obscured by the intentional debasement of our
currency, which leads many people to associate
improved living standards with nominal wage gains
rather than with increased production.
There are also those who are dismayed by the
cultural challenges presented by open or mass
immigration. But this is largely a demographic
issue ill-suited for a political solution. Such
problems are best left to the free market, where
voluntary associations and commerce encourage
peaceful coexistence and cultural assimilation.
The right to migrate is a natural right. Being
able to move about to pursue opportunity or to
escape tyranny is essential to liberty. The
Founding Fathers appeared to understand this when
they wrote the Constitution, yet, like many other
rights, this one has been trampled during the
country’s statist long march. Political borders
may serve some practical purposes, such as
delineating a particular government’s
jurisdiction, but they should never be looked
upon as sacred. Indeed, the ever-changing
political maps of world history demonstrate there
are few things less sacred than a nation’s borders.
I will close with an excerpt from Larken Rose’s
manifesto, The Most Dangerous Superstition:
The belief that politicians own everything is
demonstrated even more dramatically in the
concept of immigration “laws.” The idea that a
human being needs permission from politicians to
set foot anywhere in an entire country the
notion that it can be a “crime” for someone to
step across an invisible line between one
authoritarian jurisdiction into another implies
that the entire country is the property of the
ruling class. If a citizen is not allowed to hire
an “illegal alien,” is not allowed to trade with
him, is not even allowed to invite an “illegal”
into his own home, then that individual citizen
owns nothing, and the politicians own everything.
Well said.
http://fff.org/explore-freedom/article/immigration-the-constitution-and-liberty/
--
--
Thanks for being part of "PoliticalForum" at Google Groups.
For options & help see http://groups.google.com/group/PoliticalForum
* Visit our other community at http://www.PoliticalForum.com/
* It's active and moderated. Register and vote in our polls.
* Read the latest breaking news, and more.
---
You received this message because you are subscribed to the Google Groups "PoliticalForum" group.
To unsubscribe from this group and stop receiving emails from it, send an email
to [email protected].
For more options, visit https://groups.google.com/groups/opt_out.
