An Assembly of Pieces

James Anderson Merritt's piecemeal thoughts and observations, and the occasional attempt to put some of the pieces together.
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All material except cited quotations Copyright (C) 2004-2008 by James Anderson Merritt. All rights reserved.
Thursday, May 01, 2008


I read an article in the online Daily Californian recently, entitled "Why Illegal Aliens Are Neither," which inspired me to write and send the following essay to the Daily Cal editors. Maybe they'll publish it and maybe they won't.

In response to “Why Illegal Aliens Are Neither” by Jessica Cerittos and Elena Vilchis, I would like to challenge Daily Cal readers (many of whom, I hope, are attending Boalt Hall) to find in the US Constitution any specific authority for the federal government to prevent entrance to, exit from, or even residence (temporary or permanent) in the United States. For instance, my reading of the document shows that the federal government can “establish an uniform Rule of Naturalization” or call forth “the Militia … to repel invasions” (Article I, Section 8). The former authority is often cited as the basis for immigration law, but there are many people who come here only temporarily, or who, even if they live and work here for an extended period, nevertheless continue to regard themselves as citizens of another country, with no interest in participating in our civic institutions, and every intention of “returning home” periodically or, someday, permanently. Such people would seem to be neither invaders nor candidates for naturalization, so in which category do they fall, as to be legitimately regulated in their comings and goings by the federal government?

Article I, Section 9 of the Constitution actually enjoins congress from prohibiting the “Migration or Importation of such Persons as any of the States now existing shall think proper to admit,” prior to 1808. But this is an odd, “negative authority.” I cannot find any positive language, elsewhere in the Constitution, which specifically allows the federal government to regulate immigration, before or after the 1808 sunset date of the aforementioned restriction on Congress. Can you? The same paragraph does allow the federal government to tax “such Importation” (but not “Migration”) at up to $10 per head; this authority appears to have no sunset clause, but it also seems a far cry from a general authority to regulate immigration. Finally, I find it interesting that this paragraph hints that immigration and “Importation” of persons was originally a matter for each individual State to decide, and not the federal function that so many in the modern day believe it is and always has been.

Amendment X establishes that any authority that the Constitution does not specifically grant to the federal government, or deny to the States, is retained by the States or the people, respectively. In other words, the federal government does not have any legitimate authority that you cannot straightforwardly find in the Constitution. So it is important to demand a good answer to the question, “What authority does the federal government have to control immigration?” This question has actually been considered by the Supreme Court, but I found their key answer to be profoundly without substance and disappointing.

In the Chinese Exclusion Case of 1889, the court said simply this: “That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy.” The Justices, then, did not even bother with reconciling the government’s presumed immigration power with the text of the Constitution. The power to exclude foreigners was assumed as “inherent” in the very idea of national sovereignty. I say this answer was “profoundly disappointing” to me because throughout, the Constitution authorizes explicitly many powers that might also have seemed “inherent” in the idea of national sovereignty: The power to tax, for example, or to coin money, or to raise an army or maintain a navy, or to repel invasions.

The whole idea of the Constitution is to move away from notions of “inherent powers of sovereignty” and avoid the danger posed by government powers that “everyone” is supposed to “know,” but nobody has fixed firmly in writing. Clearly, today’s issues surrounding immigration illustrate those very dangers. Rather than inventing “inherent powers” of “national sovereignty” to appease populist sentiment, I think we should admit that Amendment X obligates us to amend our Constitution, if we want the federal government to have the authority to repel or eject any peaceful individual who is not credibly an “invader.” Until then, the matter of immigration (not “naturalization,” the acquisition of citizenship) seems a State concern, at best. Read the Constitution for yourself. What do you think?

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