July 14th, 2010

Immigration, Individual Rights, and the Constitution


photo credit: unknownkarmic

I, an advocate of liberty and staunch defender of the Constitution, support amnesty for illegal immigrants.

What I just said is tantamount to political blasphemy, if not treason, in the eyes of conservatives. Right now, some readers are quite perplexed, trying to reconcile their understanding of my general political ideals with this latest revelation. How can one who positions himself as an advocate of the Constitution, the rule of law, sovereignty, etc., support amnesty in any way, shape, or form?

The answer to that question will manifest itself as we walk through several important facets of the issue to better grasp why I could possibly be for amnesty—and why you should support it as well. To start, and before diving into specifics, I’d like to propose a high-level ideal which our immigration policy should work towards if we’re to maximize individual liberty and prosperity.

In the Book of Mormon, a sibling rivalry in a family of migrant settlers turns into centuries of divisive conflict between the two civilizations that form, each adhering to a different legal code and theology. Towards the latter end of the historical narrative, we find a description of what occurred between these two groups once the conflict (finally!) subsided:

And behold, there was peace in all the land, insomuch that the Nephites did go into whatsoever part of the land they would, whether among the Nephites or the Lamanites.

And it came to pass that the Lamanites did also go whithersoever they would, whether it were among the Lamanites or among the Nephites; and thus they did have free intercourse one with another, to buy and to sell, and to get gain, according to their desire.

And it came to pass that they became exceedingly rich, both the Lamanites and the Nephites; and they did have an exceeding plenty of gold, and of silver, and of all manner of precious metals, both in the land south and in the land north. (Helaman 6:7-9, emphasis added)

Here we find one of the (extremely) few times peace existed between these two groups, and the narrator lists for us a few resulting and related benefits. The first product of peace mentioned is open migration between the inhabitants of each distinct civilization. Free intercourse and commerce have special mention, and are corollaries to the unrestricted ability to travel and reside where one pleases. Second, the record notes that this exchange between the individuals of each group yielded increased prosperity for all involved. They became “exceedingly rich” and had “an exceeding plenty”.

As with other scripture, this one can and should be likened unto us. This is not to say, of course, that American government and jurisprudence should conform to the models found in scriptural history; the Book of Mormon describes various forms of government and is mostly theocratic in nature. However, the principle contained in this ideal snapshot of liberty and prosperity should be sincerely scrutinized in order to find out how we can apply it to ourselves and produce similar results.


A (not very) brief history of immigration

Before proceeding with some of the detailed arguments, it’s important to first understand the history of immigration law in the Unites States of America. At the very outset of the country’s formation, we find the subject raised in the list of grievances presented in the Declaration of Independence. The relevant complaint against King George notes that “He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither.” For years prior to the revolution, colonies had been developing systems whereby local naturalization would be conferred (in other words, citizenship granted) to a resident, based on factors such as length of residency and good character. These local citizenship laws were not recognized by the Crown, as England had its own process and saw an alien naturalized by Massachusetts law as an alien still—one who was not a subject of the Crown until parliamentary naturalization was conferred.

The Articles of Confederation allowed each state to retain its authority over naturalization, resulting in a variety of state practices—an outcome which James Madison called a “fault” and “defect” of the Confederation. Pennsylvania, for example, listed the following naturalization process in their September 28, 1776 constitution in section 42:

Every foreigner of good character who comes to settle in this state, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land or other real estate; and after one year’s residence, shall be deemed a free denizen thereof, and entitled to all the rights of a natural born subject of this state, except that he shall not be capable of being elected a representative until after two years residence.

Joseph Story, in his Commentaries on the Constitution, describes the fix that the Constitutional Convention later produced:

The propriety of confiding the power to establish an uniform rule of naturalization to the national government seems not to have occasioned any doubt or controversy in the convention. For aught that appears on the journals, it was conceded without objection. Under the confederation, the states possessed the sole authority to exercise the power; and the dissimilarity of the system in different states was generally admitted, as a prominent defect, and laid the foundation of many delicate and intricate questions. As the free inhabitants of each state were entitled to all the privileges and immunities of citizens in all the other states, it followed, that a single state possessed the power of forcing into every other state, with the enjoyment of every immunity and privilege, any alien, whom it might choose to incorporate into its own society, however repugnant such admission might be to their polity, conveniences, and even prejudices. In effect every state possessed the power of naturalizing aliens in every other state; a power as mischievous in its nature, as it was indiscreet in its actual exercise. In one state, residence for a short time might, and did confer the rights of citizenship. In others, qualifications of greater importance were required. An alien, therefore, incapacitated for the possession of certain rights by the laws of the latter, might, by a previous residence and naturalization in the former, elude at pleasure all their salutary regulations for self-protection. Thus the laws of a single state were preposterously rendered paramount to the laws of all the others, even within their own jurisdiction.

Extending an invitation to foreigners, Madison once noted that “America was indebted to emigration for [America's] settlement & prosperity” (notice here another connection between free migration and prosperity). The century that followed was a recognition of this debt and a continuation of the attitude that produced it; America was an “open borders” nation welcoming those who wished to enter. Federal laws dealt only with naturalization (such as the Naturalization Acts of 1790, 1795, and 1798), leaving to each of the several states the authority and ability to regulate immigration. Naturally, coastal states disproportionately dealt with the issue due to the shiploads of migrants disembarking at their ports. These states often took several steps in regards to the influx of immigrants, such as charging a modest fee to each shipmaster in order to raise funds for charities and hospitals that offered assistance to impoverished immigrants, deporting aliens deemed to “become wards of the state,” and establishing volunteer immigration boards.

State-based immigration was not always smooth sailing, though. In 1837, right in the middle of the century-long “open door era”, state laws that screened immigrants (primarily for health reasons) were challenged in the U.S. Supreme Court because, it was alleged, such laws interfered with interstate and foreign commerce—both of which constitutionally fall under the purview of the federal government. The case, Mayor of the City of New York v. Miln, arose when Miln, master of the ship “Emily” refused to comply with New York law requiring him to provide a list of his passengers and to post a bond for each in order to assure such individuals did not become wards of the state. Miln’s refusal prompted New York’s lawsuit in seeking a penalty for failure to comply.

The Court’s decision deserves to be quoted at length, in order to understand the context of their decision and the strength of the state’s position in regulating immigration:

It is contended by the counsel for the defendant that the act in question is a regulation of commerce; that the power to regulate commerce is, by the Constitution of the United States, granted to Congress; that this power is exclusive, and that consequently the act is a violation of the Constitution of the United States.

We shall not enter into any examination of the question whether the power to regulate commerce be or be not exclusive of the states, because the opinion which we have formed renders it unnecessary. In other words, we are of opinion that the act is not a regulation of commerce, but of police [in other words, a sovereign state's general “police power”], and that being thus considered, it was passed in the exercise of a power which rightfully belonged to the states.

That the State of New York possessed power to pass this law before the adoption of the Constitution of the United States might probably be taken as a truism, without the necessity of proof. But as it may tend to present it in a clearer point of view, we will quote a few passages from a standard writer upon public law showing the origin and character of this power[:]

“The sovereign may forbid the entrance of his territory either to foreigners in general or in particular cases or to certain persons or for certain particular purposes, according as he may think it advantageous to the state. … Since the lord of the territory may, whenever he thinks proper, forbid its being entered, he has no doubt a power to annex what conditions he pleases, to the permission to enter.”

The power, then, of New York to pass this law having undeniably existed at the formation of the Constitution, the simple inquiry is whether by that instrument is was taken from the states and granted to Congress, for if it were not, it yet remains with them.

If, as we think, it be a regulation not of commerce, but police, then it is not taken from the states.

… We think it as competent for a State to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts, as it is to guard against the physical pestilence which may arise from unsound or infectious articles imported.

… [G]oods are the subject of commerce, … persons are not; the Court did indeed extend the power to regulate commerce, so as to protect the goods imported from a state tax after they were landed and were yet in bulk, but why? Because they were the subjects of commerce and because, as the power to regulate commerce under which the importation was made implied a right to sell; that right was complete without paying the state for a second right to sell whilst the bales or packages were in their original form. But how can this apply to persons? They are not the subject of commerce, and not being imported goods, cannot fall within a train of reasoning founded upon the construction of a power given to Congress to regulate commerce and the prohibition to the states from imposing a duty on imported goods. (emphasis added)

We note here that the law in question dealt not with the restriction of what individual or group of persons was allowed to enter New York, but with modest procedures that sought to protect the public from disease and dependency. The Court upheld the state’s sovereign right to regulate immigration into its borders in this fashion; immigration remained free to all.

Along the way, the federal government slowly began to take interest in the matter. The first toe in the water was the Steerage Act passed by Congress on March 2, 1819 requiring the captain of a ship arriving at a United States port from a foreign country to surrender a list of passengers to the collector of customs, effective January 1, 1820. Four decades later, Congress established the Bureau of Immigration for the sole purpose of recording relevant statistics of emigrants. Four years later this was reversed, and the job handed over to the Bureau of Statistics. These efforts, though, were strictly observatory—no actions were taken to regulate, restrict, or prevent the immigration from occurring.

In 1864, the same year that the Bureau of Immigration was created, the decade-old Republican Party included in its platform the following statement on immigration:

Foreign immigration which in the past has added so much to the wealth, resources, and increase of power to this nation … the asylum of the oppressed of all nations … should be fostered and encouraged by a liberal and just policy.

The year prior, President Lincoln himself had encouraged Congress to “establish[] a system for the encouragement of immigration,” noting that the migrant influx was a “source of national wealth and strength.” Thus, although the federal government was increasingly (but slowly) becoming involved in the issue of immigration, it was doing so with the object and design of increasing the flow of immigrants and welcoming them to our nation.

Just a few short years later, the first of what would become an alarmingly increasing number of federal interventions into the immigration process manifested itself in a U.S Supreme Court case named Henderson v. Mayor of the City of New York. Here the Court reversed their 1824 decision and declared that since shipmasters paid a fee per immigrant, this equated to a tax on foreign imports, and thus constituted foreign commerce—an action which constitutionally falls under the purview of the federal government. The relevant portion of their decision reads:

It is said that the purpose of the act is to protect the State against the consequences of the flood of pauperism immigrating from Europe, and first landing in that city. But it is a strange mode of doing this to tax every passenger alike who comes from abroad.

The man who brings with him important additions to the wealth of the country, and the man who is perfectly free from disease, and brings to aid the industry of the country a stout heart and a strong arm, are as much the subject of the tax as the diseased pauper who may become the object of the charity of the city the day after he lands from the vessel.

No just rule can make the citizen of France landing from an English vessel on our shore liable for the support of an English or Irish pauper who lands at the same time from the same vessel. …

As already indicated, the provisions of the Constitution of the United States, on which the principal reliance is placed to make void the statute of New York, is that which gives to Congress the power ‘to regulate commerce with foreign nations.’ As was said in United States v. Holliday, ‘commerce with foreign nations means commerce between citizens of the United States and citizens or subjects of foreign governments.’ It means trade, and it means intercourse. It means commercial intercourse between nations, and parts of nations, in all its branches. … To regulate this trade and intercourse is to prescribe the rules by which it shall be conducted. ‘The mind,’ says the great Chief Justice, ‘can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of one nation into the ports of another;’ and he might have added, with equal force, which prescribed no terms for the admission of their cargo or their passengers.

Since the delivery of the opinion in that case, which has become the accepted canon of construction of this clause of the Constitution, as far as it extends, the transportation of passengers from European ports to those of the United States has attained a magnitude and importance far beyond its proportion at that time to other branches of commerce. It has become a part of our commerce with foreign nations, of vast interest to this country, as well as to the immigrants who come among us to find a welcome and a home within our borders. In addition to the wealth which some of them bring, they bring still more largely the labor which we need to till our soil, build our railroads, and develop the latent resources of the country in its minerals, its manufactures, and its agriculture. Is the regulation of this great system a regulation of commerce? Can it be doubted that a law which prescribes the terms on which vessels shall engage in it is a law regulating this branch of commerce?

The transportation of a passenger from Liverpool to the city of New York is one voyage. It is not completed until the passenger is disembarked at the pier in the latter city. A law or a rule emanating from any lawful authority, which prescribes terms or conditions on which alone the vessel can discharge its passengers, is a regulation of commerce; and, in case of vessels and passengers coming from foreign ports, in a regulation of commerce with foreign nations.

The accuracy of these definitions is scarcely denied by the advocates of the State statutes. But assuming, that, in the formation of our government, certain powers necessary to the administration of their internal affairs are reserved to the States, and that among these powers are those for the preservation of good order, of the health and comfort of the citizens, and their protection against pauperism and against contagious and infectious diseases, and other matters of legislation of like character, they insist that the power here exercised falls within this class, and belongs rightfully to the States.

This power, frequently referred to in the decisions of this court, has been, in general terms, somewhat loosely called the police power. It is not necessary for the course of this discussion to attempt to define it more accurately than it has been defined already. It is not necessary, because whatever may be the nature and extent of that power, where not otherwise restricted, no definition of it, and no urgency for its use, can authorize a State to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Constitution. …

But, however difficult this may be, it is clear, from the nature of our complex form of government, that, whenever the statute of a State invades the domain of legislation which belongs exclusively to the Congress of the United States, it is void, no matter under what class of powers it may fall, or how closely allied to powers conceded to belong to the States.

It is equally clear that the matter of these statutes may be, and ought to be, the subject of a uniform system or plan. The laws which govern the right to land passengers in the United States from other countries ought to be the same in New York, Boston, New Orleans, and San Francisco. A striking evidence of the truth of this proposition is to be found in the similarity, we might almost say in the identity, of the statutes of New York, of Louisiana, and California, now before us for consideration in these three cases. It is apparent, therefore, that, if there be a class of laws which may be valid when passed by the States until the same ground is occupied by a treaty or an act of Congress, this statute is not of that class. (emphasis added)

Here’s the kicker, towards the end of the opinion:

We are of the opinion that this whole subject has been confided to Congress by the Constitution; that Congress can more appropriately and with more acceptance exercise it than any other body known to our law, state or national; that by providing a system of laws in these matters, applicable to all ports and to all vessels, a serious question, which has long been matter of contest and complaint, may be effectually and satisfactorily settled.

What’s interesting about the Court’s opinion in this case is its striking resemblance to Wickard v. Filburn, a case which decades later found the Court arguing that the commerce clause of the U.S. Constitution had application to essentially any economic activity anywhere, because any single economic activity had the potential to, in the aggregate, affect economic activity in other states. The Court here makes a similar argument, namely, that wealthy individuals disembarking at a state port intended to participate in economic exchanges with others, and that the transportation of individuals on board a naval vessel was indirectly related to commerce due to ship fares and bonds. Though the federal government at this time still had no laws on the books regarding immigration, the Court opined that the immigration laws among the several states should be uniform—even though to a large extent they already were, without any federal regulation.

Important though this case was, it did not actually remove from the states the sovereign right to regulate immigration. Rather, it declared that any taxation of said immigrants constituted a form of foreign commerce, and was thus denied to the states under the U.S. Constitution.

While most issues dealing with immigration had until now focused on the eastern seaboard, our gaze now turns westward, where California passed several laws targeting Chinese immigrants specifically. A few decades prior, the gold rush seduced people of all nationalities, and Chinese immigrants came in droves to try their hand at striking rich. As things regained normalcy, many of the Chinese workforce became employed on the Transcontinental Railroad project, competing with the white workers for day laborer jobs. Naturally, this didn’t sit well with those who felt entitled to “American jobs”.

In rapid fashion, the Chinese as a bloc became perceived as being an economic threat. San Francisco, which by this time had become a multicultural melting pot of its own, was home to a protest in 1870 by Irish factory workers demanding a pay increase from three dollars per day to four. These workers were replaced by Chinese who worked for one dollar per day. Popular culture soon embraced a widespread denigration of these Chinese immigrants, painting them as strange rat-eaters and job-stealers.

Municipal and state laws passed in response to this influx of cheap labor specifically targeted the Chinese population. Some were focused on industries dominated almost entirely by the Chinese, such as laundries, with San Francisco passing an ordinance ordering people not to walk on any sidewalk with a pole and baskets over his shoulder.

Pressure mounted by the western states to see restrictions on immigration instituted by the federal government. Responding accordingly, President Rutherford B. Hayes in 1880 successfully amended the Burlingame Treaty, signed 22 years previously in a pact with China to recognize the right of migration. Previous to its amendment, and for over two decades, the treaty declared:

The United States of America and the emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects respectively from the one country to the other for purposes of curiosity, of trade, or as permanent residents.

Similar language was found in other treaties, such as in the Treaty of Commerce and Navigation between the United States and Japan signed in 1911:

The citizens or subjects of each of the high contrating parties shall have liberty to enter, travel and reside in the territories of the other to carry on trade, wholesale and retail, to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of their choice, to lease land for residential and commercial purposes, and generall to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established.

The amendment to the Burlingame Treaty suspended Chinese immigration while affirming protection for the “grandfathered” immigrants who had already arrived. Both parties in Congress, each vying to attract the vote of the western states, supported federal legislation taking the issue a step further. A bill passed the following year which would have stopped Chinese immigration entirely for nearly two decades. The bill was vetoed by President Chester Arthur, for fear of an economic retaliation by the Chinese government. The western states were furious, and some went so far as to burn the President in effigy as a result. One year later, on May 6, 1882, a softer version of the same bill passed and was signed into law by the President. This bill banned Chinese immigration for ten years, and allowed merchants, teachers, and students to immigrate freely. This new law—the first federal legislation restricting immigration— was named the Chinese Exclusion Act of 1882. For the first time with the treaty amendment and the subsequent legislation, not only was the federal government regulating/restricting immigration, but it was doing so on the basis of nationality or race.

Thus was “illegal immigration” born.

For the first time in America, there were two classes of immigrants: legal and illegal. The ban on Chinese immigration was permanently renewed, and was not to be repealed until 1943 when 105 Chinese immigrants per year were allowed. The Geary Act of 1892 was the first extension of the original immigration suspension, and was, unsurprisingly, written by a California congressman. In addition to renewing the previous Act, this new law required all Chinese residents to register for certificates documenting their lawful residence, and refused them the ability to bear witness in court cases or be given bail in habeas corpus cases. Three years later, the Supreme Court declared that federal district courts could not even review Chinese habeas corpus petitions.

What for decades was a trickle of increasing federal oversight of and interest in immigration soon became a deluge. Three years after the Chinese Exclusion Act, Congress passed the union-promoted Contract Labor Law, which prohibited the use of contract labor with exemptions for actors, artists, lecturers, singers, domestic servants, and skilled labor required for new industries. Three years later, an amendment to the Contract Labor Law was passed ordering the deportation of alien contract laborers within one year of entry.

The expansion of federal intervention into immigration was coordinated through the efforts of each branch of government. The Supreme Court, not to be outdone, further augmented the immigration authority in an 1889 case dealing with a Chinese immigrant who went on a vacation to his homeland for a short time. Having obtained a certificate assuring his re-entry upon returning, he left America. When he arrived at the conclusion of his voyage, he was informed that new legislation had rendered his certificate and the government’s previous promise to him null and void. The 1889 Court decision concluded that Congress could indeed refuse him entry into the United States despite any previous assurances made. Part of the decision reads:

The power of the legislative department of the government to exclude aliens from the United States is an incident of sovereignty which cannot be surrendered by the treaty making power. …

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. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence.

If it could not exclude aliens, it would be to that extent subject to the control of another power. As said by this Court in the case of 11 U. S. 136, speaking by Chief Justice Marshall:

“The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it deriving validity from an external source would imply a diminution of its sovereignty to the extent of the restriction and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source.

While under our constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory. The powers to declare war, make treaties, suppress insurrection, repel invasion, regulate foreign commerce, secure republican governments to the states, and admit subjects of other nations to citizenship, are all sovereign powers, restricted in their exercise only by the constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations. …

The control of local matters being left to local authorities, and national matters being intrusted to the government of the Union, the problem of free institutions existing over a widely extended country, having different climates and varied interests, has been happily solved. For local interests the several states of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power. To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. …

If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects. The existence of war would render the necessity of the proceeding only more obvious and pressing. The same necessity, in a less pressing degree, may arise when war does not exist, and the same authority which adjudges the necessity in one case must also determine it in the other. In both cases its determination is conclusive upon the judiciary. …

The power of the government to exclude foreigners from the country whenever, in its judgment, the public interests require such exclusion, has been asserted in repeated instances, and never denied by the executive or legislative departments. In a communication made in December, 1852, to Mr. A. Dudley Mann, at one time a special agent of the department of state in Europe, Mr. Everett, then secretary of state under President Fillmore, writes: ‘This government could never give up the right of excluding foreigners whose presence it might deem a source of danger to the United States.’ …

In a dispatch to Mr. Fay, our minister to Switzerland, in March, 1856, Mr. Marcy, secretary of state under President Pierce, writes: ‘Every society possesses the undoubted right to determine who shall compose its members, and it is exercised by all nations, both in peace and war.’ ‘It may always be questionable whether a resort to this power is warranted by the circumstances, or what department of the government is empowered to exert it; but there can be no doubt that it is possessed by all nations, and that each may decide for itself when the occasion arises demanding its exercise.’

In a communication in September, 1869, to Mr. Washburne, our minister to France, Mr. Fish, secretary of state under President Grant, uses this language: ‘The control of the people within its limits, and the right to expel from its territory persons who are dangerous to the peace of the state, are too clearly within the essential attributes of sovereignty to be seriously contested. Strangers visiting or sojourning in a foreign country voluntarily submit themselves to its laws and customs, and the municipal laws of France, authorizing the expulsion of strangers, are not of such recent date, nor has the exercise of the power by the government of France been so infrequent, that sojourners within her territory can claim surprise when the power is put in force.’ …

The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one. The powers of government are delegated in trust to the United States, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations of private interest. The exercise of these public trusts is not the subject of barter or contract.

Whatever license, therefore, Chinese laborers may have obtained, previous to the act of October 1, 1888, to return to the United States after their departure, is held at the will of the government, revocable at any time, at its pleasure. (emphasis added)

The Court here inferred some congressional authority to divine the “national interest” and use such as justification for forbidding any person entry into the United States when “the interests of the country require it”. On any whim, then, Congress could refuse to admit anybody into the country, based on nationality or any other qualifier. The textual basis for their defense in this case was not the commerce clause, but the power to repel invasions. As support for such a statement, the Court argued that invasions can come through an organized national military force or “vast hordes” of individuals peacefully migrating of their own accord.

In a case three years later, the Court again affirmed the sovereign right of the federal government to restrict and regulation of individuals:

It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. In the United States, this power is vested in the National Government, to which the Constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of the Government, and may be exercised either through treaties made by the President and Senate or through statutes enacted by Congress. (emphasis added)

A year later, the Court again augmented the sovereignty ruling, declaring:

The right to exclude or to expel aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, is an inherent and inalienable right of every sovereign nation.

In the United States, the power to exclude or to expel aliens is vested in the political departments of the National Government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established, except so far as the Judicial Department is authorized by treaty or by statute, or is required by the Constitution, to intervene.

The power of Congress to expel, like the power to exclude, aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or Congress may call in the aid of the Judiciary to ascertain any contested facts on which an alien’s right to remain in the country has been made by Congress to depend.

Congress has the right to provide a system of registration and identification of any class of aliens within the country, and to take all proper means to carry out that system. (emphasis added)

In the matter of a couple decades, the Court’s opinions had transmogrified into something altogether different than the established precedent. Whereas 1875’s ruling found the Court issuing their decree in light of the commerce clause and power of states to tax freely migrating individuals, the Court, after the hyped anti-Chinese public sentiment had permeated America’s political institutions, instead affirmed a “sovereign right” in agreement with “international law” to “provide a system of registration” for immigrants, and restrict and expel whomever they wished, for whatever reason; only a casual and weak reference was made to the power to repel invasions.

The Court’s opinions, of course, were not unanimous decrees reflecting universal agreement in political ideology and governmental authority. In a dissent of the 1893 decision, Justice Brewer took issue with his colleagues’ inference of the “sovereign power” being used to justify regulation of immigration:

It has been repeated so often as to become axiomatic that this government is one of enumerated and delegated powers; and, as declared in article 10 or the amendments, ‘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.’

It is said that the power here asserted is inherent in sovereignty. This doctrine of powers inherent in sovereignty is one both indefinite and dangerous. Where are the limits to such powers to be found, and by whom are they to be pronounced? Is it within legislative capacity to declare the limits? If so, then the mere assertion of an inherent power creates it, and despotism exists. May the courts establish the boundaries? Whence do they obtain the authority for this? Shall they look to the practices of other nations to ascertain the limits? The governments of other nations have elastic powers. Ours are fixed and bounded by a written constitution. The expulsion of a race may be within the inherent powers of a despotism. History, before the adoption of this constitution, was not destitute of examples of the exercise of such a power; and its framers were familiar with history, and wisely, and it seems to me, they gave to this government no general power to banish. Banishment may be resorted to as punishment for crime; but among the powers reserved to the people, and not delegated to the government, is that of determining whether whole classes in our midst shall, for no crime but that of their race and birthplace, be driven from our territory. …

The government of the United States is one of limited and delegated powers. It takes nothing from the usages or the former action of European governments, nor does it take any power by any supposed inherent sovereignty. There is a great deal of confusion in the use of the word ‘sovereignty’ by law writers. Sovereignty or supreme power is in this country vested in the people, and only in the people. By them certain sovereign powers have been delegated to the government of the United States, and other sovereign powers reserved to the states or to themselves. This is not a matter of inference and argument, but is the express declaration of the tenth amendment to the constitution, passed to avoid any misinterpretation of the powers of the general government. That amendment declares that ‘that 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.’ When, therefore, power is exercised by congress, authority for it must be found in express terms in the constitution, or in the means necessary or proper for the execution of the power expressed. If it cannot be thus found, it does not exist. (emphasis added)

Brewer’s defense provides clarity of thought where previous and future Court opinions were found lacking—arguing that detaining and deporting individuals suspected of being in violation of immigration law, without affording due process, is a practice authorized nowhere in the Constitution. But the Court’s majority continually ruled in favor of an expansion of government authority, interestingly not relying in these instances upon the naturalization clause, but upon the commerce clause, the delegated power to repel invasions, and the “sovereign” right America supposedly has a nation.

The previous Court decision to ban taxes on immigrants took away from the states the ability to fund the care of the poor and needy. The festering problem these individuals continually introduced led people to look instead to the federal government, where popular support resulted in a comprehensive 1891 immigration law which established Ellis Island, put administration of immigration law under the Treasury Department in a new Bureau of Immigration, and listed a number of “inadmissible classes” of individuals who would not be permitted to enter the country. Included in that list of mostly acceptable exclusions (diseased people, felons, etc.) were polygamists, their inclusion in the list resulting from the political battle being fought with Utah over its desired entry into the Union, and the repeated and bigoted persecution heaped upon members of the Church of Jesus Christ of Latter-day Saints. Thus within a matter of years, immigration law was being used to target both ethnic and religious communities specifically.

A decade later, the Chinese Exclusion act was renewed indefinitely. A few years after that, Congress wanted a comprehensive look into the “immigration question” and established a nine-member commission, known as the Dillingham Commission, that investigated from 1907 to 1911 the various issues at hand and reported their findings in 41 volumes. Their ultimate recommendation: curtail immigration from Japan and southern and eastern Europe. Their reasoning: such individuals were, based on “scientific” data, fundamentally incapable of assimilation into American culture—new immigrants were inferior to older ones, produced a saturation of unskilled labor which resulted in lower wages and standard of living, took jobs from native workers, and lived in unsanitary conditions. Their proposed remedy: administer literacy tests to ensure that immigrants could read and write.

Xenophobia continued to increase, leading to the Immigration Act of 1917 which ignored any limitations whatsoever on constitutional restraint, and assumed complete and unlimited control over the regulation and restriction of immigration. Woodrow Wilson vetoed the bill but Congress had the support to override the veto, and after four attempts were able to include the recommendations of the Dillingham Commission to require a literacy examination and block immigrants from the aforementioned geographic locations and ethnic backgrounds. All Asians, save for Japanese and Filipinos, were barred from migrating to the United States of America. The tight and extensive regulations imposed by this bill were further strengthened and augmented in a related bill passed seven years later which likewise extended the Chinese Exclusion Act, imposed immigration caps on various countries, and outright prohibited the immigration of certain races of people. No limitations were imposed on people from Latin American countries.

The sentiment permeating this legislation was vocalized by Rep. Albert Johnson, Chairman of the Committee on Immigration and Naturalization, who wrote the following in a foreword to the 1927 book Immigration Restriction: A Study of the Opposition to and Regulation of Immigration into the United States:

The result [of free migration] is too well known to require extensive comment. Millions came. Today, instead of a well-knit homogenous citizenry, we have a body politic made up of all and every diverse element. Today, instead of a nation descended from generations of freemen bred to a knowledge of the principles and practices of self-government, of liberty under law, we have a heterogeneous population no small proportion of which is sprung from races that, throughout the centuries, have known no liberty at all, and no law save the decrees of overlords and princes. In other words, our capacity to maintain our cherished institutions stands diluted by a stream of alien blood, with all its inherited misconceptions respecting the relationships of the governing power to the governed.

It is out of an appreciation of this fundamental fact, vague at first, but later grown firm and substantial, that the American people have come to sanction–indeed to demand–reform of our immigration laws. They have seen, patent and plain, the encroachments of the foreign-born flood upon their own lives. They have come to realize that such a flood, affecting as it does every individual of whatever race or origin, can not fail likewise to affect the institutions which have made and preserved American liberties. It is no wonder, therefore, that the myth of the melting pot has been discredited. It is no wonder that Americans everywhere are insisting that their land no longer shall offer free and unrestricted asylum to the rest of the world.

The United States is our land. If it was not the land of our fathers, at least it may be, and it should be, the land of our children. We intend to maintain it so. The day of unalloyed welcome to all peoples, the day of indiscriminate acceptance of all races, has definitely ended.

In addition, crusaders of the 1917 and 1924 laws were deeply persuaded by Madison Grant and his 1916 book The Passing of the Great Race. Grant was a eugenicist who favored selective breeding as a method of purifying the American population’s bloodstream. He was a source for much of the data relied upon for constructing the 1924 law, his advocacy focused on an immigration limit for individuals from eastern/southern Europe and an outright ban on East Asians. The added laws in the 1924 now required that aliens obtain visas from an American consul in their country of origin, this serving as a method of screening applicants in order to select those who were deemed best suited for migration to, and perhaps eventual citizenship in, the United States.

The Alien Registration Act of 1940 required all aliens within the country’s borders to register and receive an Alien Registration Receipt Card, a piece of documentation that a decade later would morph into today’s green card. Included in this law was a provision forbidding aliens to “advocate, abet, or teach the desirability of overthrowing government”—a restriction used largely to prosecute Communists.

The dozens of related bills passed in subsequent decades, leading up until today, vary little from the general trend here described. The race-based immigration quotas were finally removed after over 70 years of their use, leaving us with what we have today: a simple ratio-based ceiling, justified in various court cases by different cited authorities: the commerce clause, the power to repel invasions, the naturalization clause, or circumventing the Constitution altogether, the implied rights enjoyed by a sovereign nation.


A summary interpretation of U.S. immigration history

While the foregoing history contained bits and pieces of editorialization, it is important to expand upon several points already made.

Our current immigration situation can be likened to a rotting tree, either in need of being felled or nurtured to good health. If we were to dig up the roots, though, we would see that they are poisoned; the foundation upon which our modern immigration laws rest is evil and wrong. This poison consists of two parts: racism and protectionism.

As has been shown, federal immigration laws got their start as a method by which xenophobic Americans rallied together to summarily deny specific ethnic groups from coming to this land. Whereas in previous decades, the federal government explicitly recognized the “inherent and inalienable right of man to change his home and allegiance” and the right of “free migration… for purposes of curiosity, of trade, or as permanent residents,” in later years Americans changed their mind and started using whatever constitutional justification they could think of in their support.

These racist policies were directly connected, however, to the second part of the poison: protectionism. Protectionism, for the uninitiated, deals with the use of forceful law to manage the economy in pursuit of a desired goal, in many cases the inflation of wages or imported goods. The reason these two poisons are tied together is that the Chinese immigrants, as a general group, were able and willing to work for less money than the “natives” who were accustomed to higher wages. When employers saw the economic benefit in cutting costs by employing individuals at a lower rate, the natives grew restless and the race wars fomented. The labor unions at the time termed “illegal immigrant” as a pejorative and fought to expel the cheaper competition; ironically, the entities so despised today by conservatives are they who lobbied for the original federal laws that created illegal immigration!

Both racism and protectionism are evil—nobody has the right to deny another individual, regardless of race, the right to rent or purchase private property (and therefore cannot delegate that authority to the government they have organized), and nobody has the right to mandate through law that their industry be favored through tariffs, salary caps, minimum wage, or anything related.

And yet, these two poisons have produced the rotting tree we now call immigration law; rather than felling it and starting fresh, many people want the tree to grow and extend its branches—all while ignoring the roots.

Finally, our review of the Court cases should be seen as an interesting experiment in justification of constitutional authority. The patient reader who made it all the way through the above material will note the varying citations offered over the years as reason why the power to restrict the emigration of individuals, and deport those deemed unworthy, is constitutional. No less than four references have been made—the commerce clause, the power to repel invasions, the naturalization class, the implied powers as a sovereign nation. One would think that if the federal government did indeed have the power to regulate immigration of individuals, not only would they have done so at some point during the first century of the country’s existence, but they would be able to generally agree on the source of that authority.

Having now taken the time to look over the history of the issue, it becomes necessary to mention and rebut several key arguments often made in favor of our current immigration laws. Once complete with the nitty gritty, we’ll conclude with a high-level analysis of the various issues presented. We start with the only argument that carries any weight in the entire matter (for, if the federal government lacks any authority to manage immigration, then all the other perceived benefits and problems associated with the issue are not valid justification for imposing such laws), and then explore the secondary arguments.


“Our immigration laws are constitutional”

False. The closest argument that can be made in defense of this statement is to point to the naturalization clause, which gives Congress the power “To establish a uniform rule of naturalization”. What is naturalization? Noah Webster’s 1828 dictionary defines it as:

The act of investing an alien with the rights and privileges of a native subject or citizen.

Thus, naturalization is the power to transform an alien into a citizen. Naturalization is not the same as immigration, as immigration is the process of traveling and residing in a certain locale, and naturalization is the process of granting the rights of citizenship to that individual.

Those who rely on the naturalization clause for their support of our federal immigration laws ironically employ the same method used by federal expansionists of opposing political ideologies. While others may ignorantly (or deviously) rely on the commerce clause, general welfare “clause”, or the necessary and proper clause for their statist desires, those who use the naturalization clause in defense of federal immigration policies are doing the same thing. Both use a specific grant of authority and warp it into something completely different in an attempt to justify the unconstitutional status quo they prefer.

As the Court has previously done, some may refer to the commerce clause, power to repel invasions, of the inherent right of a sovereign nation. The commerce clause argument only applied to the state-enforced taxation, and cannot be used to regulate the peaceful migration of an individual. The sovereign power argument is a glaring and dastardly conflict with the limited and enumerated powers conferred by the states upon the federal government through the creation and ratification of the U.S. Constitution, and as Justice Brewer wrote in his dissent, “Where are the limits to such powers to be found, and by whom are they to be pronounced?” This is an assumed power excused by an appeal to international law, and is easily proven fallacious and should be outright rejected by the very crowd who in other cases objects to using international law and implied powers as arguments for federal arrogation of authority.

Now, a word about the invasion argument. The same section of the Constitution that provides for authority to regulate naturalization also says that Congress may “provide for calling forth the Militia to … repel Invasions.” Article IV Section 4 also requires the federal government to protect the states against invasion. Many people argue that the aggregate actions of immigrants in crossing our borders constitues an invasion, and thus merits response as constitutionally authorized. Organizations such as the John Birch Society, Constitution Party, the Eagle Forum, and others all use this constitutional provision as justification for federal immigration laws. Ironically, these same people look with great alarm to the Wickard v. Filburn case previously mentioned for its use of aggregate activities to justify an expansive and liberal reading of narrowly-intended clause. This cognitive dissonance is striking.

Looking closely at the matter though, it is apparent that the peaceful migration of an individual cannot be lumped in with the actions of other independent people and classified as an actual invasion. We are talking about a group of unconnected individuals acting of their own accord and seeking disparate goals—not a coordinated effort by a nation, military, or other organization working towards a common goal and actively seeking to undermine the sovereignty, security, and strength of the country. Consider James Madison’s arguments regarding the power of repelling invasions in Federalist 43:

A protection against invasion is due from every society to the parts composing it. The latitude of the expression here used seems to secure each State, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. The history, both of ancient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article. Protection against domestic violence is added with equal propriety. … Why may not illicit combinations, for purposes of violence, be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State; and if the authority of the State ought, in the latter case, to protect the local magistracy, ought not the federal authority, in the former, to support the State authority? Besides, there are certain parts of the State constitutions which are so interwoven with the federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other. Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose, will generally prevent the necessity of exerting it.

What Madison is describing has nothing to do with the collective actions of freely-migrating individuals, some of whom may be violent criminals, or others of whom may be a drain on society welfare programs. When speaking in the Virginia Ratifying Convention, Madison made clear that the mention in Article IV cannot in any way be re-interpreted in order to support the restriction of migration:

The word invasion here [in Article IV Section 4], after power had been given in the former clause to repel invasions, may be thought tautologous, but it has a different meaning from the other. This clause speaks of a particular state. It means that it shall be protected from invasion by other states. A republican government is to be guarantied to each state, and they are to be protected from invasion from other states, as well as from foreign powers; and, on application by the legislature or executive, as the case may be, the militia of the other states are to be called to suppress domestic insurrection

We have an explicit example of the application of the invasion clause to immigrants due to the Alien and Sedition Acts. These were four bills passed in 1798 by the Federalist-controlled federal government, two of which dealt with aliens and provided that they may be deported from the country if deemed (without due process) to be a threat or if their country of origin was at war with the United States of America. Virginia was one of the states which protested some of the draconian measured included in these laws, and created a commission to investigate and recommend a resolution for the general body. In his Report of 1800, Madison, leading the commission, included the following in his proposed resolution (which passed):

It is said, that Congress are by the Constitution to protect each state against invasion; and that the means of preventing invasion are included in the power of protection against it.

The power of war in general, having been before granted by the Constitution, this clause must either be a mere specification for greater caution and certainty, of which there are other examples in the instrument, or be the injunction of a duty, superadded to a grant of the power. Under either explanation, it cannot enlarge the powers of Congress on the subject. The power and the duty to protect each state against an invading enemy, would be the same Under the general power, if this regard to greater caution had been omitted.

Invasion is an operation of war. To protect against invasion is an exercise of the power of war. A power, therefore, not incident to war, cannot be incident to a particular modification of war. And as the removal of alien friends, has appeared to be no incident to a general state of war, it cannot be incident to a partial state, or a particular modification of war.

Nor can it ever be granted, that a power to act on a case when it actually occurs, includes a power over all the means that may tend to prevent the occurrence of the case. Such a latitude of construction would render unavailing every practicable definition of particular and limited powers. Under the idea of preventing war in general, as well as invasion in particular, not only an indiscriminate removal of all aliens might be enforced, but a thousand other things still more remote from the operations and precautions appurtenant to war, might take place. A bigoted or tyrannical nation might threaten us with war, unless certain religious or political regulations were adopted by us; yet it never could be inferred, if the regulations which would prevent war, were such as Congress had otherwise no power to make, that the power to make them would grow out of the purpose they were to answer. Congress have power to suppress insurrections, yet it would not be allowed to follow, that they might employ all the means tending to prevent them; of which a system of moral instruction for the ignorant, and of provident support for the poor, might be regarded as among the most efficacious. (emphasis added)

In short, the collectivization of independent individuals into an aggregate block determined to be invading our country is without merit. A simple appeal to individual rights destroys the broad brush attempt at attaching the actions of a few people to the whole. If Juan from Guatemala is a peaceful, hard-working individual with no violent tendencies whatsoever, no desire to attack or undermine the government, and no intention of being a dependent, how can his desire to live and work in the United States be construed as an invasion? Only an expansive and problematic interpretation can attempt to justify such an argument.

Liberty-minded people reject any collectivization of individuals and the denial of one’s rights and privileges based on the actions of another. Only pro-centralization statists ignore such conundrums in favor of viewing aggregated statistics and trends to determine public policy. As Jefferson argued, “I would rather be exposed to the inconveniences attending too much liberty, than those attending too small a degree of it.”

Before concluding with this issue, one other item should be mentioned. Until very recently, I had not once seen or heard this line from the Constitution used in defense of federal immigration laws, likely because it is generally understood that it has no application. In Article I Section 9, we read the following:

The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

Section 9 of the first article of the Constitution is often given the subtitle “Limits on Congress”, for every directive listed therein is a negative description of what Congress cannot do. Taken in that context, it becomes clear that nothing in a limiting clause can be construed to delegate a new power to the Congress—the exceptions and restrictions listed must refer to other powers explicitly delegated. A casual reading of this clause leads to the reader to assume that it is referring to the practice of slavery, and this assumption would be correct. Some, however, focus on the word migration, and infer that after the year 1808 Congress was no longer prohibited from prohibiting migration, and therefore could after that time prohibit it—arguing, incorrectly, that a prohibition of a power was at the same time a conditional delegation thereof.

Several sources support the view that the clause has only to do with slavery, and not the general migration of free persons. In one of James Madison’s private letters, for example, he indicates that the convention’s use of the word migration referred to slaves, criminals, and perhaps free blacks as well.

As slaves were being bought and sold like common wares, the slave trade was an area of interstate and foreign commerce, and thus subject to Congress’ regulation power. This negative restriction on Congress, then, effectively said that they could not use their commerce regulation authority to ban the slave trade until after the year 1808. Since free individuals come and go voluntarily and not as bought and sold goods, their movements (migration) cannot and do not fall under the commerce power. This understanding was agreed upon by Justice Marshall when writing the Supreme Court’s opinion on Gibbons v. Ogden in 1824:

But it is obvious that the power of the States over this subject, previous to the year 1808, constitutes an exception to the power of Congress to regulate commerce, and the exception is expressed in such words, as to manifest clearly the intention to continue the preexisting right of the States to admit or exclude, for a limited period. The words are

the migration or importation of such persons as any of the States, now existing, shall think proper to admit shall not be prohibited by the Congress prior to the year 1808.

The whole object of the exception is to preserve the power to those States which might be disposed to exercise it, and its language seems to the Court to convey this idea unequivocally. (emphasis added)

Half a century later, in 1883 the Court opined in People of the State of New York v. Compagnie Generale Transatlantique that:

We know of nothing which can be exported from one country or imported into another that is not in some sense property—property in regard to which some one is owner, and is either the importer or the exporter. This cannot apply to a free man. Of him it is never said he imports himself or his wife or his children. The language of section 9, art. 1, of the constitution, which is relied on by counsel, does not establish a different construction:

The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the congress prior to the year 1808, but a tax or duty may be imposed on such importation, not exceeding $10 for each person.

There has never been any doubt that this clause had exclusive reference to persons of the African race. The two words ‘migration’ and ‘importation’ refer to the different conditions of this race as regards freedom and slavery. When the free black man came here he migrated; when the slave came he was imported. The latter was property, and was imported by his owner as other property, and a duty could be imposed on him as an import. We conclude that free human beings are not imports or exports within the meaning of the constitution. (emphasis added)

The fact that a very limited number of Court cases even reference this constitutional prohibition on Congress at all, coupled with the almost universal lack of its use by individuals as justification for federal immigration law, shows a general understanding and agreement that the word migration had to do only with blacks, whether free or enslaved, with no application to the general migration of free, peaceful individuals, and that its inclusion in a negative exclusion did not delegate any new power to Congress.


“Illegal immigrants are a drain on the economy and take American jobs”

False. This argument is, of course, the direct descendant of the arguments used by the influential railroad unions to excoriate the Chinese who were willing to work for less money, thus siphoning away jobs from those who felt entitled to them, and at a higher wage.

However, defining the vague “drain on the economy” reference depends on who you talk to, and what data is being used. If somebody loses their job as a result of the employer deciding to hire workers who will work for less, then clearly that person feels that the economy is suffering since they are suffering (as the saying goes, “when your neighbor loses his job, it’s a recession, and when you lose your job, it’s a depression”). But this story is, in the aggregate, an emotional one—and one that is capitalized upon by politicians. Consider the following advertisement produced by the Coalition for the Future American Worker, an organization comprised of groups such as NumbersUSA and the Federation for American Immigration Reform, which advocate the imposition of firm caps on all forms immigration, legal or otherwise:

There’s even a Reclaim American Jobs Caucus in the House of Representatives, currently comprised of 41 members, which asserts that “the link between unemployment and illegal immigration is clear.” This caucus supports “turning off the jobs magnet,” as if you can somehow successfully disincentivize people from wanting to work for more money in better conditions—whatever the laws and risks involved may be.

We’re told by such groups that the existence of millions of illegal immigrants—nobody really knows how many there are—is itself a theft of American jobs, and that if these people were somehow mass deported (or employers threatened with enough fines and imprisonment for hiring them), those employment opportunities would be available to the “natives”. Some groups, such as in the video shown above, focus on legal immigrants, while others, such as the Caucus just mentioned, hone in on the “illegals”. Regardless, their argument is the same: the introduction of immigrants into American society steals wealth and employment opportunities.

This argument, though, is absurd, and easily disproven. Consider the following excerpt of a report by the Migration Policy Institute:

[T]he impact of immigration [on a nation's economy] remains small, for several reasons. Immigrants are not competitive in many types of jobs, and hence are not direct substitutes for natives. Local employers increase demand for low-skilled labor in areas that receive low-skilled immigrant inflows. Immigrants contribute to demand for goods and services that they consume, in turn increasing the demand for labor. And immigrants contribute to labor market efficiency and long-term economic growth.

A study by the Fiscal Policy Institute had this finding:

The reality is that immigrants play a key role in our society. In all 25 metro areas we studied, the economic role of immigrants were all significant as immigrants contribute to the economy in direct relation to their share of the population.

A Public Policy Institute of California report argues that the legalization of the illegal immigrant population would be an economically neutral action:

Many observers believe that a legalization program could have a significant economic impact. Our research suggests otherwise. This report finds that legalizing most currently unau- thorized immigrants would not lead to dramatic changes in the labor market, either for unauthorized immigrants or for native workers. We also find little evidence to support the view that such a step would have significant effects on the broader economy, particularly on tax revenues or public assistance programs.

Additionally, the Cato Institute has described some of the higher-level impacts immigrant labor creates:

The addition of low-skilled immigrants expands the size of the overall economy, creating higher-wage openings for managers, craftsmen, accountants, and the like. The net result is a greater financial reward and relatively more opportunities for those Americans who finish high school.

Finally, a recent report by the Center for American Progress and the American Immigration Council contends that the legalization of the illegal immigrant population “would raise wages, increase consumption, create jobs and generate more tax revenue.” Immigrants, legal or otherwise, are not the bloodsucking leeches they are portrayed by many to be, selfishly stealing the blood rightfully belonging to the body they are attacking. The very presence of these individuals introduces additional demand and consumption, and the lower wages many of the immigrants receive allows those with whom they transact to save resources and invest them elsewhere.

We tend to focus on the contributions of the low-skill laborers themselves, but must not forget the productive increase immigrant entrepreneurs bring to our country. According to a recent study by Duke University, one quarter of technology companies started in the U.S. between 1995 and 2005 had at least one immigrant founder. These companies hired 450,000 workers and had a combined $52 billion in sales. Half of the start-ups in Silicon Valley were founded by immigrants. From MIT alone, foreign graduates have founded an estimated 2,340 active U.S. companies that employ over 100,000 people. And, interestingly, resident aliens contributed to an estimated 24.2 percent of international patent applications in 2006.

To be sure, Americans who work in low-paying jobs have competition when immigrants are able and willing to work for the same price or less. However, this impact is small when compared to the economy as a whole, and cannot be used as the basis for protectionist policies that aim to save these jobs. The government’s role is not to bail out big corporations or save jobs for those with little to no skills. Rather, the government exists to secure individual liberty. Nobody is guaranteed employment, and thus the government cannot morally intervene to manage the economy in favor of one industry, socioeconomic class, or other group.

We should also rebut the notion that jobs can be stolen by anybody, including immigrants. Jobs are not owned, nor are they an entitlement. They are not property to be defended through law, nor is any job forcibly stolen when the employer terminates his relationship with one employee and hires another. A job is a contract between two voluntary parties who mutually consent to the terms of employment. It is, therefore, a fallacious statement to say that illegal immigrants (or anybody) has “stolen” “American” jobs, for individuals engaging in commerce within a free enterprise system are the ones who determine to whom their money will be given, and under what terms.

Does a Utahn steal a Texan’s job when he moves to another state? If I, as an employer, decide to move my business from California to North Dakota, am I stealing anything from my former employees who cannot make the move to another state? If the answer to these questions is no (and it is), then how is the action any different when discussing national borders as opposed to state borders? American citizens from different states cannot steal jobs, nor can immigrants, legal or otherwise.

The issue of employment aside, we may look at another related issue, such as the supposed “cost” of illegal immigrants. This strain of the argument we’re addressing claims that the existence of illegal immigrants is a drain on the society as said individuals use up resources and participate in social welfare programs without paying into the system as Americans are required to. But does this concern have any merit?

A report by FAIR (one of the anti-immigration organizations mentioned above) claims that illegal immigrants cost the government (state and federal, combined) $113 billion per year, the largest expenditure being the education of the immigrants’ children. Conversely, a 2008 report by the Perry Group states that the elimination of the “undocumented worker” labor force would have a net negative impact on the economy, completely contradicting the claim we’re discussing. According to their report, this action would remove $1.8 trillion in annual spending, $652 billion in output, and 8.1 million jobs. They also state:

If all undocumented workers were removed from the workforce, a number of industries would face substantial shortages of workers, and Americans would have to be induced into the labor pool or provided incentives to take jobs far below their current education and skill levels. For this phenomenon to occur to a meaningful extent, substantial wage escalation would likely be ncessary, thus eroding competitiveness in global markets.

As the domestic workforce becomes older, more stable in number, and better educated, the U.S. production complex increasingly requires foreign, low-skilled workers.

Additionally, contrary to popular wisdom, immigrants on the whole pay more in taxes than they receive in benefits. If a wiser method of taxation were implemented—repealing the punishing income tax as the primary objective—the ratio of taxation to benefits would significantly increase.

All of this data ignores, however, the underlying poor policy. The existence of social welfare programs—un-constitutional at the federal level, and unwise at the state level—does indeed introduce a cost, but these programs should not exist in the first place. Americans have figured out how to vote for themselves the wealth of other individuals, and now that the loot has been collected, they wish to build up walls around it so that only they can have access. A respect for liberty demands removing these programs (thus removing the available benefits and corresponding incentives enticing “illegal immigrants”), changing our form of taxation, and allowing free enterprise to take its course. The “cost” being complained about is merely the addition of new players in a broken system. Don’t blame the players—fix the system!

It makes no sense to punish the would-be worker or his employer (through programs such as E-Verify) for the desire to engage in commerce. Why should these individuals be punished for peaceful and productive work? The real problem is and always has been the creation, expansion, and perpetuation of welfare programs offering “free” incentives, encouraging dependency, and discouraging the desire to have to earn one’s own way. Imposing fines and threatening imprisonment or deportation of those who wish to simply engage in commerce is, at its core, a form of oppression against those who simply desire to freely associate and pay their own way.

Perhaps a more personal example would be instructive.

For the past few weeks, my wife and I have been building out our basement. During the process, we solicited various bids from contractors and workers recommended to us by others. When it came time to employ somebody to do our drywall, we ended up going with a company whose price was half of the other quote we received. The men who showed up were likely “undocumented workers” (I didn’t ask, as it’s not my business, and I frankly don’t care), spoke little English (it was a great opportunity for me to practice my Spanish), and yet their work was superb. They worked 12 hour days, rarely took breaks, and we were very impressed with the quality of their work.

The protectionist will scoff at the above story—indeed, I have been told that I’m “part of the problem” by employing these individuals—and argue that I’m hurting the employment opportunity for Americans by not employing them instead. But why should I be required to pay more for the same (and, likely inferior) level of service? Should the government forbid us from purchasing items from China because they are cheaper, and may put American manufacturers out of business? Should Wal-Mart be closed by executive fiat since more expensive “ma and pa”-type shops cannot compete?

As with all questions of public policy to secure liberty, we must look to the individual. I saved thousands of dollars by employing these men. I was able to engage in commerce with whoever I desired. I provided employment to individuals who will in turn use that money to pay rent, buy gasoline, purchase food, etc. Wealth was generated, as my home’s value has now increased as a result of their work. And the money I saved by hiring them allows me to employ yet other individuals; had I been required to “buy American”, who knows if and when I would have been able to proceed with the other projects in my basement.

One might still argue that some of the money I’ve given to these men will be sent to their country of origin to support the families there. It should be noted, however, that money is not wealth, but the mere representation of labor, and the opportunity to compensate others for their own labor. I received a drywalled basement, they worked for dozens of hours, and wealth on both sides was created as a result of this fair and honest exchange. Though some money may be transferred, I still keep my basement, and my home retains its increased value. The ability to obtain money here and send it elsewhere does not discourage domestic activity, as the existence of millions of people here results in both ever-present demand for goods and services, and a workforce to productively provide for these things. Money is but an object to be used in demand for others’ labor; those dollars will, eventually, make their way back to America. The same exchange takes place, for example, when my wife buys DVDs dubbed in Swedish—we receive the goods, and the money leaves America and goes to Sweden. Should this be forbidden by law?

To summarize, the presence of additional people creates additional demand through an increase in consumption and labor. (After all, the logical extension of the argument we’re addressing implies getting into population control through caps on reproduction—something few people, especially in Utah, would support.) As such, the net effect of an increase in economic exchanges results in greater wealth for all involved. Here we see clarified in modern day example the Book of Mormon connection between free migration and prosperity. Perhaps James Madison said it best in a speech before Congress in 1790, when describing that immigration served to “increase the wealth and strength of the community.”


“Illegal immigrants bring violence and gangs to our country”

It alleged by some that the power to repel invasions should be invoked because of the strong criminal element that exists among the hoards of immigrants crossing the border in violation of federal law. The federal government’s response is justified and encouraged by supporters of this argument due to the “national security” concern this creates. Emails, blog posts, and other sources love to cite scary statistics as evidence of a calamitous infestation of gangs, drug wars, and other associated violence, but what does the data show?

Anecdotal stories can foment popular support for a particular piece of legislation, or capture the hearts of millions in demonstrating why harsher enforcement of illegal immigrants is needed. But if we’re to support any law that restricts the freedom of innocent, peaceful people due to the actions of violent offenders, we should at least first be clear about what the data says. Nobody disputes that among the group of immigrants coming into this country, evil people are to be found. Even in the trickle of legal immigrants allowed into this country we may find people who commit egregious, aggressive acts (the 9/11 perpetrators come to mind). The question, however, should be: compared to the normal/native population, do illegal immigrants have a higher rate of violence and crime? Should this be the case, then perhaps an escalated response might be warranted.

The Dillingham Commission mentioned in the history section of this article expressed the same worry about violence that we still hear 100 years later. Their concern was that the undesirable immigrants posed a serious threat to American society and culture, and thus should be banned. However when focusing their attention on the criminal aspect of the argument, they found little support:

No satisfactory evidence has yet been produced to show that immigration has resulted in an increase in crime disproportionate to the increase in adult population. Such comparable statistics of crime and population as it has been possible to obtain indicate that immigrants are less prone to commit crime than are native Americans. (emphasis added)

The following from a Cato Institute report agrees with the commission’s conclusion on crime:

Data show immigrants are less likely to commit crimes than the native-born, a pattern confirmed by a 2008 study of data from California: “When we consider all institutionalization (not only prisons but also jails, halfway houses, and the like) and focus on the population that is most likely to be in institutions because of criminal activity (men 18-40), we find that, in California, U.S.-born men have an institutionalization rate that is 10 times higher than that of foreign-born men (4.2 percent vs. 0.42 percent). And when we compare foreign-born men to U.S.-born men with similar age and education levels, these differences become even greater,” according to research by econo- mists Kristin F. Butcher (Federal Reserve Bank of Chicago) and Anne Morrison Piehl (Rutgers University and the National Bureau of Economic Research). Looking only at prisons, the researchers found, “U.S.-born adult men are incarcerated at a rate two-and-a-half times greater than that of foreign-born men.”

National studies have reached the conclusion that foreign-born (both legal and illegal immigrants) are less likely to commit crimes than the native-born. “Among men age 18-39 (who comprise the vast majority of the prison population), the 3.5 percent incarceration rate of the native-born in 2000 was 5 times higher than the 0.7 percent incarceration rate of the foreign-born,” according to the Immigration Policy Center.

Despite a dramatic surge in illegal immigration in the past two decades, crime rates are actually dropping in the country’s major cities. Take Los Angeles, for example, where an estimated 700,000+ illegal immigrants reside. In 2009, L.A. had the least amount of violent crime in more than half a century; the trend is the same in Washington, D.C., San Francisco, New York, Chicago, Boston, and Dallas.

Illegal immigration continues unabated and at an increasing rate, and yet according to one criminologist, “Experts did not see [the drop in crime] coming at all.” Even in Phoenix, capital of the state enjoying nationwide attention for its recent immigration law, violent crime plunged 17% between 2008 and 2009, shattering a near-mythical perception of increased immigration leading to increased crime. For the first quarter of 2010, violent crime was down 17% overall in the city compared to 2009, homicides were down 38%, and robberies were down 27%.

It seems that especially in recent years, immigrants are more concerned with getting to work than getting into trouble.


“Illegal immigrants break the law on a daily basis by their very existence in this country”

Dealing with this issue requires first understanding the nature of the (un-constitutional) law being broken. Assuming for the sake of the argument that the law itself was valid, its violation would be essentially equated with trespassing—residing on and traveling through property not owned by the individual. To understand the relative impotence of this argument, it’s important to distinguish the type of law. One type, malum in se, refers to things which inherently are wrong, and a violation of someone else’s life, liberty, or property: theft, murder, vandalism, etc. The other type, malum prohibitum, refers to laws that make actions criminal offenses just because the government says they should be, but not because they necessarily harm another person.

The supposed crime of “illegal” immigration falls into the latter category; nobody dies or becomes injured when Juan decides to cross the border into California looking for work. If you exceed the speed limit while driving, cross the street outside the boundaries of the cross-walk, smoke some marijuana, or clip a friend’s nails without a beautician license, you are not violating anybody’s rights, but rather are performing an action which a group of politicians has deemed worthy of regulation or prohibition.

This distinction is important, for it adds context and weight to the supposed crime being committed. If you were to to gauge the offense simply by public concern and outcry, one might assume that Juan’s border crossing is itself an atrocious crime against humanity meriting the most severe of consequences for justice to be served. No rights are violated in that crossing, however, and thus the action is only a crime because of statute. If a police officer who pulls you over for speeding decides to let you off on a warning, your neighbors and friends do not publicly protest the decision and demand that the harshest punishment possible be served. Instead, you are usually grateful to have your non-violent action go unpunished, and would agree that the offense itself was relatively insignificant. Cannot the same leniency be offered to individuals whose only alleged crime is the violation of an un-constitutional federal law?

A variation of the “breaking the law” argument offered by some Latter-day Saints seeks to use the 12th article of faith as reason why the (un-constitutional) federal laws should be supported, and why those in this country in violation of such laws are breaking the law on a daily basis. That article reads:

We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law.

All this article says, though, is that we agree to place political leaders over us and obey the laws they pass, provided that such laws they implement and enforce are themselves lawful (and constitutional). As we’ve shown that federal immigration laws are not authorized in the Constitution, they therefore do not require our support.

Some also point to section 134 of the Doctrine and Covenants for support of the argument, which says, in part, that we “sustain and uphold” the government. Any favorable appeal to this scripture, though, requires ignoring numerous qualifiers and exceptions. For example, the few words just quoted are made relevant only “while [individuals are] protected in their inherent and inalienable rights by the laws of such governments.” I have the inherent right to contract and associate with whomever I please (the “control of property” mentioned in this section of scripture), and federal immigration laws restrict and remove that ability. A subsequent verse also states that “the commission of crime should be punished according to the nature of the offense.”

As it relates to this discussion (and going on the invalid assumption that the law is constitutional), Juan’s presence in the United States, contrary to federal law, should be punished to the same degree that you should be punished if you were to trespass on another person’s property. His border crossing is a misdemeanor, as are things such as public intoxication, indecent exposure, disorderly conduct, reckless driving, drug possession, etc. Where is the conservative-led outcry over jaywalkers?


“Illegal immigrants have no desire to assimilate into our culture”

Several founding fathers expressed a concern about the influx of immigrants into America, specifically, that such individuals would need to quickly adapt to American culture and society if the new government was to succeed and not be unduly influenced by outside sources. Our first president, for example, wrote in a letter to John Adams that immigrants should integrate themselves so that

by an intermixture with our people, they, or their descendants, get assimilated to our customs, measures, laws: in a word soon become one people.

James Madison is quoted by many as having said that America should exclude the immigrant who could not readily “incorporate himself into our society,” but this is taken out of context. The relevant text states:

I should be exceedingly sorry, sir, that our rule of naturalization excluded a single person of good fame that really meant to incorporate himself into our society; on the other hand, I do not wish that any man should acquire the privilege, but such as would be a real addition to the wealth or strength of the United States. (emphasis added)

It is here made evident that Madison was concerned not about aliens in general (those who emigrated to and resided in America), but individuals working to become citizens and thereby have opportunity to participate in (and influence) the government. A similar context-warping citation comes from Alexander Hamilton, who wrote the following:

The United States have already felt the evils of incorporating a large number of foreigners into their national mass; by promoting in different classes different predilections in favor of particular foreign nations, and antipathies against others, it has served very much to divide the community and to distract our councils. It has been often likely to compromise the interests of our own country in favor of another. The permanent effect of such a policy will be, that in times of great public danger there will be always a numerous body of men, of whom there may be just grounds of distrust; the suspicion alone will weaken the strength of the nation, but their force may be actually employed in assisting an invader.

Reading Hamilton’s whole letter, however, clarifies that a significant portion of his concern was also with naturalization—his goal being “the exemption of the citizens from foreign bias.” In Notes on Virginia, Thomas Jefferson wrote:

Every species of government has its specific principles. Ours…is a composition of the freest principles of the English constitution, with others derived from natural rights and natural reason. To these nothing can be more opposed than the maxims of absolute monarchies. Yet, from such, we are to expect the greatest number of emigrants. They will bring with them the principles of government they leave, imbibed in their early youth; or if able to throw them off, it will be in exchange for an unbounded licentiousness, passing, as is usual, from one extreme to another. It would be a miracle were they to stop precisely at the point of temperate liberty. These principles, with their language, they will transmit to their children. In proportion to their numbers, they will share with us the legislation. They will infuse into it their spirit, warp and bias its direction, and tender it a heterogeneous, incoherent, distracted mass.

Born out of such concerns, the early naturalization laws passed by Congress required that aliens renounce under oath any and all previous allegiances to their countries of origin. The same requirement exists today for naturalization, with the following text included in the mandatory oath of allegiance during the naturalization process:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen.

While these concerns are understandable when granting rights of citizenship (and influence in government) to aliens, the fears are largely unfounded when talking about your average immigrant. It’s important to note that the same arguments have been used throughout our country’s history; during the mass migration of the Irish to New York and Boston in the mid-19th century, for example, the natives likewise grew restless and vocalized doubts that the group would assimilate. The data, however, doesn’t support this concern, especially with regards to today’s level of immigration:

Scholars such as Samuel Huntington and Victor Davis Hanson argue that Mexican migration today is unique in U.S. history in its size and social impact.

They and others contend that, unlike previous immigrant groups, Mexican migrants retain close ties to their nearby homeland, dominate other immigrant groups in sheer numbers, and concentrate geographically into insular, Spanish-speaking communities that slow their assimilation. On closer examination, none of those concerns are serious enough to warrant increased restrictions on migration from Mexico. While the number of immigrants from Mexico is high in absolute numbers, the rate of immigration from Mexico in recent years is still lower than what it was for specific ethnic groups in the past. In the 1990s, an estimated 4.2 million Mexicans immigrated to the United States, both legally and illegally. That represents 1.5 Mexican immigrants per year per 1,000 U.S. residents. In comparison, during the two decades from 1841 to 1860, America absorbed an average of 3.6 Irish immigrants per year per 1,000 U.S. residents—more than double the current rate of Mexican immigration. For half a century, from 1841 to 1890, the rate of German immigration was heavier in every decade than the current inflow of Mexicans.

In the first decade of the 20th century, Russian, Italian, and Austro-Hungarian immigration each separately surpassed the current rate of Mexican migration. Yet the United States managed to absorb each of these distinct cultural and linguistic cohorts into American society despite the apprehensions of their contemporaries.

Despite the ever-present and somewhat xenophobic fears about the ability of immigrants (legal or otherwise) to assimilate, this country’s history shows long-term trends clearly indicating that the concerns are unfounded. (Yes, immigrants may bring with them bad ideas for government and society, but Americans generate plenty of idiocy and poor policy on their own.) America, to this day, has demonstrated itself to be a great engine of assimilation. The Borg would be proud.


“Amnesty is immoral and a violation of the rule of law”

At the outset of this article, I declared that I supported amnesty for illegal immigrants. Let’s define what that means. Amnesty implies forgiving the violation of a law—in other words, applying mercy rather than imposing justice.

To those who assume that the federal immigration laws are a wonderful thing (even if they are flawed to some degree), amnesty means the legalization of those who have invaded our country and break the laws of the land by their very existence within our country’s borders, as well as consent of their participation in our workforce and economy. This is to be treated as heresy, of course, and the extent to which most conservatives disagree with such a proposal is evident in the readily visible and spasm-inducing reaction most have when asked to consider the thought.

To those who instead understand the arguments made in this article, specifically, that our federal immigration laws are un-constitutional, amnesty means a defense of individual liberty, adherence to the Constitution, and an increase in our general prosperity. If the laws in question are the reason we are discussing justice versus mercy, and if such laws are nowhere authorized in the Constitution, then the imposition of penalties to enforce them is itself an immoral act. Amnesty, rather than being immoral, becomes the only moral thing to do. Jefferson noted that any such laws exceeding the clear delegation of powers granted to the federal government would be “altogether void and of no force.”

Clearly, my advocacy for amnesty does not include looking the other way for actual crimes committed in violation of legitimate law. Identity theft, fraud, rape, vandalism, and other crimes should all be prosecuted (when the victim wishes to pursue legal recourse) just as they should be for American citizens. Amnesty does not seek to give “illegal immigrants” a clean slate for every action, but rather supports their legalization in terms of residence and migration only.

Those who ignore the constitutional question and seek still to uphold the federal immigration laws, citing their need, usefulness, or importance, become hypocrites, for such people often challenge the constitutionality and morality of other laws with which they disagree. An honest adherence to principle requires applying the same standard in this issue as in all others.

Amnesty is not immoral—the imposition of penalties or deportation of an individual for failing to comply with an un-constitutional law is. Amnesty is not a violation of the rule of law—allowing federal immigration laws to exist and be enforced, despite no constitutional authority, is itself a violation of the rule of the supreme law of the land.


“State-controlled immigration laws would be a messy patchwork”

Individuals who support federal immigration law often point to the supposed undesirable effect state-based laws would have in creating any sort of sane, workable system. This objection contends that such a practice would be inefficient, difficult to enforce (due to limited state budgets and personnel), and, as the New York Times put it, would “cause havoc”.

Interestingly, this point was asserted by the federal government just days ago when announcing its challenge of the controversial Arizona immigration law. According to the Justice Department in their motion for a preliminary injunction:

The Constitution and federal law do not permit the development of a patchwork of state and local immigration policies throughout the country.

In light of the historical evidence here provided, this claim is as absurd as Congress saying they are authorized by the Constitution to require individuals have health care, for example. And yet it is quite unsurprising that they have imagined up the idea that the authorization does indeed exist. Even as far back as the 1875 Henderson case, you’ll recall, the Court was arguing that since “Congress can more appropriately and with more acceptance exercise” the power over immigration law, the matter was “effectually and satisfactorily settled”.

Sadly, the trend of centralized homogenization in public policy has, for over a century now, continually moved what were traditionally state issues to the federal government. In a country as large as ours, the major downside to this is, of course, that an individual who disagrees with the law is left little recourse in opting out. Were such matters left to the states—the “diverse laboratories of democracy,” as Justice Brandeis called them—those who opposed a Texas immigration law could vote with their feet by moving to another state whose laws were more to his liking, while yet remaining an American citizen and enjoying the protections of the U.S. Constitution.

Some of the most important and legitimate laws in existence—those punishing criminal offenses such as murder, rape, and vandalism—are within the domain of the several states. These laws, in harmony with the primary purpose of government itself, are a perfect example of the much-maligned “patchwork” so feared in regards to immigration. History has shown that such laws tend to harmonize, meaning that while each state retains authority over what punishment will exist and on what conditions, these issues by and large are similar between each state.

A patchwork of laws is not to be feared, but to be welcomed, as each state asserts its own sovereignty in regards to domestic matters, pursuing through the political process those policies and outcomes that are most desired by its people.


A word on Arizona

A discussion on immigration in 2010 would not be complete without addressing the controversy brewing in Arizona. On April 23, Arizona Governor Jan Brewer signed into law a bill to enable state law enforcement officials to detain, report, and deport illegal immigrants to federal authorities, among other things.

This new law is the latest in a string of attempts by Arizona to solve a very real problem it faces, being one of a few border states shouldering the burden of immigration—just as east coast states did two centuries ago. Back in 1994, for example, Arizona joined Florida, Texas, California, and New Jersey in suing the federal government for billions of dollars in restitution for having to imprison and offer mandated services to illegal immigrants. As one law professor noted, “There are so many reasons why those lawsuits are fatally flawed. Legally, they are without merit. The U.S. has sovereign immunity. It cannot be sued for monetary damages unless it agrees to be sued.” So much for justice.

At a high level, Arizona’s new law might be considered a good thing—any state asserting its own sovereignty in regards to a power not expressly delegated to the federal government should generally be applauded. However, while Arizona should indeed take things into its own hands (primarily for security reasons, secondarily for constitutional reasons), they have gone about it the wrong way. Rather than assert their authority and regulate and enforce immigration law on their own, as their legislature sees fit, Arizona has further bound itself to the un-constitutional federal immigration laws. Reading the bill, one finds this introductory paragraph explaining the “intent” of SB1070:

The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States. (emphasis added)

The word “federal” appears 37 times throughout the bill, cementing a reliance upon usurped federal authority as pretext and justification for the state merely helping enforce the federal laws. Ironically, the bill itself is not necessarily a bad thing—only its declaration of authority. Rather than pointing to themselves and stating what they will do, they are pointing to the federal government. Had Arizona simply copied and pasted the relevant statutes from federal law into their own, their actions would be far more justified and constitutionally authoritative.


The Latter-day Saint Connection

For better of for worse, members of The Church of Jesus Christ of Latter-day Saints are in the thick of the immigration issue. The sponsor of Arizona’s new law is LDS, and so is the Utah state representative, Stephen Sandstrom, who is seeking to implement a similar law in the next legislative session. Missionary work is successful and ongoing amongst individuals likely here illegally, according to federal law, and the Church allows such individuals to hold callings, enter the temple, and serve missions.

Said Elder Jeffrey R. Holland: “We’re not agents of the immigration service, and we don’t pretend to be, and we also don’t break the law.” Elder Marlin K. Jensen framed the issue in similar context provided in this article: “The church’s view of someone in undocumented status is akin, in a way, to a civil trespass. There is nothing inherent or wrong about that status.” Jensen was asked by Church President Thomas S. Monson in January 2008 to urge Utah legislators to use “compassion” when constructing legislation. Some might equate compassion with mercy or amnesty—a proposition that produces many of the same arguments and statements made two centuries ago, all tainted with racism and protectionism.

Recent legislation is harming the Church’s efforts to attract new converts, and some Latter-day Saints, including Utah Attorney General Mark Shurtleff, are appealing directly to President Monson for a statement on the matter. Governor Gary Herbert, also a Latter-day Saint, has expressed support for Utah taking charge (presumably in a manner like Arizona’s law provides), noting that “the federal government still has a responsibility to do what they need to do.”

All of the vitriol, the protectionism, and the baseless “rule of law” arguments, though, fall far short of the ideal introduced at the beginning of this article. You’ll recall the near-utopian benefits explained by the narrator as having resulted from a policy of free migration: uninhibited commerce, increased production, and skyrocketing prosperity for all involved. It is true that such results and policies came after “there was peace in all the land,” and that our geopolitical climate today bears no resemblance to that state of affairs. One cannot argue, however, that the hard-working migrant who bears no ill will towards any man or government desires anything other than peace, and the resulting policies and benefits. That gangs and druglords and murderers and rapists exist among the subset of people known as “illegal immigrants” is no moral justification for punishing and refusing commerce and intercourse with those who have done no wrong. Similarly criminal elements exist within our own society, yet few advocate the restriction of freedoms for all 18-30 year-old males, for example.

Church members are encouraged to treat “illegal immigrants” with compassion, both individually and through public policy. Few, however, can articulate what a tangible manifestation of such a feeling would look like, for compassion’s close cousin, as noted, is amnesty—a political proposal most conservatives detest. Yet these individuals are our brothers and sisters, and most desire the same things each of us do: a better life. America can offer that, and the prospect of that better life hangs over others’ heads as an alluring incentive. This may not be a strong enough reason for some people to permit all those who want to come, but it certainly is reason to do away with hateful language, protectionist policies, and a mob mentality.

What would Jesus do if he were on Earth and had to navigate the massive barriers—both legal and physical—erected to manage immigration? I can’t imagine he’d wait around for a green card in hopes of making a visit to the United States.


Conclusion

Some readers may disagree with various data and arguments presented in this article, but all secondary and supplemental arguments are of lesser importance. What matters most to the discussion at hand is the authority to regulate and restrict immigration. For the first century of this nation’s existence, immigration policy was left—reserved, actually—to the several states. Nowhere in the U.S. Constitution was this authority delegated to the federal government. Its gradual usurpation and arrogation, as has happened in so many other spheres of public policy, while not surprising, should not be supported (indeed, it should be actively opposed).

For those who classify themselves as followers, students, and defenders of the Constitution, the immigration situation presents only one clear and compelling path: treat any federal regulation as a fraudulent theft of state sovereignty. The only proper way to allow the federal government to intervene in these matters is through a constitutional amendment, so that the states may delegate their power to the centralized entity established to govern regarding similar matters of national importance. (Frankly, given today’s political climate, such an amendment would likely pass quite easily.) Unless and until an amendment passes, states should assert their own sovereignty in dealing with immigration law, and refuse to rely, as Arizona mistakenly has, on un-constitutional federal laws for their justification and support.

If our ideal future as individuals is peace and prosperity, and regardless of whether immigration law rests in the hands of the states or the federal government, we must consider the example offered by the Book of Mormon and work to produce the same outcome. Latter-day Saints especially—those who see the Constitution as inspired, who often give lip service to the freedoms they enjoy, and who have been counseled to follow such high ideals as loving their neighbor, treating others (regardless of federally-imposed legal status) with compassion, and doing unto others as they would have done unto them—should support laws that will enable more people, not less, to enjoy what America has to offer.

Free migration does not erase borders. Residence and citizenship are separate issues. All people, not just Americans, have natural and inalienable rights. Nobody is entitled to a job, nor a certain level of wages or salary. Peaceful, productive people are not our enemy, are not invading America, and should not be used as scapegoats in the xenophobic, protectionist attempt to “secure the border”.

Tyrannical countries and closed-down societies build fences at their borders—not a country regarded by many (perhaps foolishly) as a paragon of liberty. America was not intended to be a country where the Constitution does not apply within 100 miles of the borders, where individuals are encouraged or required to be ready at a moment’s notice to prove their government-sanctioned legality, or where the freedom of association is suppressed and outright obliterated where it matters most: with families.

America is better than this. We’re not just about making money and living in a relatively safe environment, but about asserting our individual rights and perpetuating the American dream down through the generations, and outward to our fellow man. We should spend our time and energy in building bridges, and not erecting barriers. We should be promoting peace while reaping the benefits it brings, advocating free migration as a method of securing the freedom of association and maximizing prosperity. And most of all, despite the popular political rhetoric, we should be maintaining state sovereignty and supporting and defending the Constitution—a document that nowhere within its 4,500 words delegates to the federal government the power to regulate or restrict the immigration of individuals.

My thanks to Jeff Thayne for his assistance in providing research for this article.

84 Responses to “Immigration, Individual Rights, and the Constitution”

  1. The Writer
    July 14, 2010 at 5:23 pm #

    Ok, I’ll be honest…I didn’t read the whole thing, yet…but I will.

  2. Bryan Hyde
    July 14, 2010 at 7:26 pm #

    This was a very hot topic of discussion on my radio program this afternoon. I really wish I’d seen your article prior to going on the air. You’ve made some very persuasive arguments in favor of more freedom rather than more statism. Kudos for bucking the orthodoxy of conventional wisdom, Connor.

    Well done.

  3. Dan
    July 14, 2010 at 7:28 pm #

    Kudos for Connor taking the liberal position…

  4. rmwarnick
    July 14, 2010 at 9:38 pm #

    That clocks in at 18,543 words. No way I can read it all. So, I’ve got no idea if the first sentence is just a tease.

  5. Jim Davis
    July 14, 2010 at 9:40 pm #

    Kudos for Connor taking the principled position…And for not caring for what’s left/right, liberal/conservative.

    Thank you Connor. This article forced me to look at the immigration issue from a perspective I had never seen before. I had always assumed that the federal government had the authority to make laws regarding immigration. The specific citations in the Constitution, which you have pointed out, have no explicit reference to immigration. The authority of the federal government to protect/repel invasions is probably the closest Constitutional argument I have heard in favor of federal immigration law making powers (though after reading James Madison’s interpretation on that clause it is a major stretch to make that argument). Your position, on Constitutionality, deserves merit. Though I am still open to opposing views that the federal government might properly have the power to regulate immigration to some degree…If it were Constitutionally permissible of course.

    the foundation upon which our modern immigration laws rest is evil and wrong. This poison consists of two parts: racism and protectionism.

    Although I don’t disagree that racism and protectionism are the two biggest motivators behind most anti-illegal immigration arguments I wouldn’t say they’re the only two motivators. Racism is most definitely evil. I think “evil” is a bit strong when referring to protectionism though. I think childish might be a better word (semantics…). I wonder though- couldn’t people reasonably enlist the government (federal or state) to filter which individuals enter their jurisdiction out of concerns of safety (perhaps another form of protectionism…?). I know you showed how small of a percentage of immigrants perform criminal acts compared to US citizens but the fact remains- the incentive for criminals (or criminals-to-be) from other countries to come to this country increases as the risk of being stopped is reduced. At what “percentage” does the amount of criminals entering this country become alarming enough to take safety (aka the protection of life) seriously to the point of admitting government should play some role in “guarding the border”? This question isn’t rooted out of racism (I’m ½ Mexican), nor am I a protectionist (people should be able to freely trade/contract across national boundaries). I am just wondering if you, or anyone else, doesn’t believe there is a legitimate role for government to play in the filtering of “peaceful individuals” and non-peaceful individuals between boundaries?

    Thanks again! This piece is very persuasive.

  6. Jeremy
    July 14, 2010 at 10:29 pm #

    Wow, that was a lot to swallow. This one must have taken a lot of time. =)

    After talking with a few people I respect who have advocated strongly against immigration laws, I’ve come to the conclusion that I feel entitled as an american citizen. I think there should be certain entitlements here, however previously I’ve viewed my citizenship likely more like a roman citizen. I’m cool and non-citizens are not. In some respects this is true, american citizens are entitled to more than non-citizens. But it’s much less than what is generally believed. I’ve begun transforming that assumption, but it is quite pervasive, at least in the circles that I run in.

    I am very appreciative of the history and research you’ve done, I think I understand why this position is taken. Additionally I’m more or less convinced that mostly unrestricted migration is the way to go. I think in general the fear of the public is giving immigrants something for nothing. It’s been my understanding that amnesty means citizenship, and that is something that I am against. This one’s important because I don’t think I am alone in this, and I’m trying to pay attention. We need a way for non-citizen immigrants to work alongside citizens. So much is tied up with our citizenship that it seems many want to just grant citizenship and go forward. I think it will be both more difficult and more beneficial to keep citizenship a more difficult road, while allowing those who just want to come and live here without the rights inherent with citizenship the opportunity to do so.

    My biggest concern regarding “illegal immigrants” is minimum wage, which you indirectly touched on, and possibly child labor laws. You have to draw a line somewhere. I can (sort of) go for child labor laws, though I think they need to be revised. I don’t necessarily agree with minimum wage, but the under the table status of illegals makes this situation much worse — often an otherwise legal business cannot compete in a low wage arena because of minimum wage. Kind of a no-win situation in many cases. I don’t see an easy way out of that.

    I had a few more points as well, and a few nit picks, but I better move on, I’ve spent far more time than I should here already. Maybe another time. =)

  7. Jeffrey T
    July 15, 2010 at 1:25 am #

    “It’s been my understanding that amnesty means citizenship, and that is something that I am against.”

    The truth is, Jeremy, amnesty does not mean citizenship. It simply means we won’t prosecute them for crossing the border. The Federal government has the power to decide who can become citizens, and we can certainly pardon people for crossing the border without honoring them with citizenship. They would simply be non-citizen residents.

  8. Jeremy
    July 15, 2010 at 8:40 am #

    Agreed Jeff, I get that. My concern is that the public in general thinks that though, and others who say amnesty mean that. I know a few others who have made that incorrect connection who are less informed than I.

    Thanks for the clarification though. :)

  9. David
    July 15, 2010 at 11:34 am #

    I love this quote from Rep. Albert Johnson:

    In other words, our capacity to maintain our cherished institutions stands diluted by a stream of alien blood, with all its inherited misconceptions respecting the relationships of the governing power to the governed.

    While there are doubtlessly many individuals who had come and become part of the “body politic” who did not have an understanding about the high ideal that America was intended to embody, the quote ignores the fact that a much larger problem has been that a majority of natural born Americans have not been taught that high ideal. The lack of having that ideal passed to succeeding generations has done more to dilute our capacity to maintain our (apparently not very) cherished institutions than any amount of immigration. In fact I suspect that a higher proportion of immigrants understand the American ideal than of third and fourth generation Americans.

    This reminds me of two quotes from an article called American by Choice that “true American citizens are made and not born” and that “Americans, both natural and naturalized, must be trained–they must be made.”

    By now we have compounded the problem by diluting the execution of the American ideal so much that even the immigrants who want to come here now probably do so without any true vision of the ideal that made this nation great.

    @Jim Davis Re: legitimate questions of safety

    I think there are two answers to your concern – first, Connor has indicated that restrictions based on criminal history and communicable diseases can be reasonable; second, the fact that the federal government has no authority to regulate immigration does not hinder the states from such regulation and states would undoubtedly take issues of safety into consideration as they create their regulations.

  10. Jim Davis
    July 15, 2010 at 12:46 pm #

    Thanks David. I don’t know how I missed those points in Connor’s novel. :)

  11. Carissa
    July 15, 2010 at 2:10 pm #

    That was LONG! And it gave me a headache to read via iPhone ;). But lots of interesting info here, thanks!

  12. Kelly W.
    July 15, 2010 at 4:11 pm #

    Wow, I promise I’ll read the entirety sometime. But I’m really proud of Connor taking this stand. I’d like to type out my reason for disagreeing with the “normal” stance of those who are crying out on the issue of immigration.

    I am a passionate gardener, and so I picked up the book of Ezra Taft Benson written about his time of being the Secretary of Agriculture. I wanted to learn about agriculture, and what a church authority might say about it. But I was somewhat disappointed in that regard, as the book said nothing about agriculture. The book was political. Benson said time and again that if the U.S. Government didn’t end price supports and crop subsidies, there would be the day come that we’d regret that we ever did it.

    So, many years after the book was written, I had to ask myself that since we are still actively supporting subsidies and price supports, what it was that we should be regretting about right now. The answer is all too clear! It is in the immigration issue.

    From my vantage point of knowing about agriculture in the last couple of decades, I could easily put this together. Here’s my example:

    The raising of corn has certain costs. The cost of seed, cost of fertilizer, pesticides, labor, fuel for the tractors, etc. These costs are trackable, and can be documented from farm to farm, and from country to country. While these costs may vary from individual farm to farm, they can be averaged. Just so happens that the costs 15 years ago was tracked to be about $5 per bushel.

    Mexico was the birthplace of corn. Mexico has historically been self-sufficient in their needs for corn. Mexico has also been a corn EXPORTING country, meaning that they not only grew enough corn for their own use, but had enough extra to export and sell on the world market.

    USA has also been a corn exporting country.

    So, a bushel of Mexican corn goes on sale on the world market for $5, and the bushel of U.S. corn goes on sale on the world market for $5. The playing field is level, and both USA and Mexico can sell their corn.

    But, US policy now gets involved and gives the US farmer some support in the form of a subsidy. The farmer collects this subsidy (paid for by my tax dollars!), and this lowers the net cost of US corn to $3 per bushel.

    Now the corn reaches the world market, and corn can be bought from USA for $3 per bushel, or it can be bought from Mexico for $5. Which would you choose?

    So, literally overnight, Mexican corn farmers are out of business. But it gets worse.

    Mexican corn farmers now realize that if they continue to grow their own corn, it will cost them more in fertilizer, pesticides, labor, fuel, etc. than if they just bought the $3 corn from USA instead. So, next season, they don’t even grow corn for themselves, let alone for the export market.

    All the farm workers AND farm owners now look for other work to support themselves, and find very little work. Some move to Mexico City to find a factory job or something, some are just out of luck.

    But wait! Nebraska corn farms are hiring! They turn a blind-eye to someone who’s willing to work for less than minimum wage and not have job benefits like health insurance provided by the employer! They’re willing to “do the jobs that Americans are not willing to do!”

    Mexicans who have families to support then must go where the work is to support themselves and families. They are here doing hard labor.

    USA was built upon immigrants who were willing to work hard to support themselves and families. But now we think differently. Suddenly we don’t want someone in America who will work hard to support his family!

    Summary: Benson tells us we’ll live to regret that day, and we don’t listen to him. Instead, we literally pay our tax dollars to destroy Mexican jobs, and then we further have an un-Christlike attitude towards them and say: “Sorry we took away your job, but you no longer can even work here. Scram!”

    All of the “solutions” being proposed by the likes of Arizona are not addressing the real roots to the problem. In reality, they only compound the problem.

    Now that I’ve said my piece, I’ll have to go back to Connor’s article to see if it jives with my own view.

  13. Carissa
    July 15, 2010 at 4:42 pm #

    Wow Kelly, that is sad and wrong. I knew about some of the negative effects of corn subsidies (like corn syrup becoming less expensive and therefore more prevalent in our diet) but for some reason I did not make the connection to immigration (job loss in Mexico) until you brought it up. That just makes me really sad.

  14. Carissa
    July 15, 2010 at 6:21 pm #

    “The flow of immigrants north from Mexico since Nafta is inextricably linked to the flow of American corn in the opposite direction, a flood of subsidized grain that the Mexican government estimates has thrown two million Mexican farmers and other agricultural workers off the land since the mid-90s. (More recently, the ethanol boom has led to a spike in corn prices that has left that country reeling from soaring tortilla prices; linking its corn economy to ours has been an unalloyed disaster for Mexico’s eaters as well as its farmers.) You can’t fully comprehend the pressures driving immigration without comprehending what U.S. agricultural policy is doing to rural agriculture in Mexico.”

    You Are What You Grow
    By Michael Pollan
    The New York Times Magazine, April 22, 2007

  15. Edward
    July 15, 2010 at 6:59 pm #

    I’m glad to see the agricultural/economic side of Mexico’s trouble being discussed. It is ironic that the US has played a part (maybe even a large part?) in Mexico’s economic instability which has resulted in more Mexicans risking a border crossing to find a better life. Oh just a few more of the unintended consequences of poor government policy–in this case NAFTA and crop subsidies.

    But lets rejoice in some more irony–we might have hurt Mexico’s corn agriculture, but we’ll make up for it in poor policy resulting in all the drugs trafficked from Mexico. That’s an great economic boon for them, no?

  16. Kelly W.
    July 15, 2010 at 7:12 pm #

    Carissa, thanks for the Pollan quote. You ought to reseach High Fructose Corn Syrup (unrelated to the immigration issue, but a health issue we ought to be aware of.)

    Connor, I finally read it all, well most of it, noting each point you bring out.

    I especially liked the tree with corrupt roots, and how a Utahn moves to Texas to steal a job from a Texan.

  17. Clif
    July 15, 2010 at 11:11 pm #

    Great post Connor. For whatever disagreements we have, I have always admired your consistency – a virtue that I find to be sorely lacking by a great many on the right.

    I salute you for putting principle above politics. I would that there were more people like you.

  18. Carborendum
    July 16, 2010 at 6:24 am #

    Connor,

    I agree with you in principle. But I have some disagreements on application.
    I believe in free travel as in ideal. But there is a problem when we apply this principle in today’s world. Any movement between countries will have consequences because of cultural as well as legal implications. You mentioned Arizona. They have a problem. A large part of why the problem exists is because a) Federal govt assumption of authority that belongs to the states and b) Treaties between countries are so irrational. The federal government agreed to terms that the state (Arizona) could not accept or even deal with while the Federal government failed to do what they promised per the treaty. These treaties are irrational because of the differences between cultures & laws. While these problems exist, I don’t support free travel.
    Your quote from Helaman only occurred after many years of war, followed my many years of preaching and accepting the gospel. The people EARNED the right to peace. Then through peace, they achieved free travel and commerce. They didn’t demand free travel and commerce so they could obtain peace.
    When building a house one must first build the foundation, then the walls, then the next floor and so on. This principle seems to be the roof, when we barely have the foundation set yet. Such construction will produce a poorly supported roof. And this metaphoric roof is difficult enough to support as it is.
    I perceive an error in one of your assertions. “Thus the illegal immigration was born”. This indicates that no illegal immigrant ever existed before that date. That simply isn’t true. You mentioned that some screening was done to prevent criminals from entering the US, some record keeping issues existed. If a criminal was discovered and turned away, could he not return through nefarious means anyway? If so, was he not an illegal immigrant?
    I also see an incomplete statistic in the studies you cite on crime. Notice the wording “foreign born”, not “illegal immigrants”. This statistic then also includes many legal immigrants, like myself, who have put their licks in to get that treasured piece of paper. Thus it is not a fair comparison. What are the statistics about illegal immigrants?

    http://www.usillegalaliens.com/impacts_of_illegal_immigration_crime.html

    To avoid wasting time, focus on the statistics at about ¼ of the way down the page. He shows that illegal immigrants commit about 5% of the crimes. Despite some poor interpretation of the data, he makes an important point about crime by illegal immigrants. Although citizens may have a much higher incarceration rate (per CATO) illegal immigrants have a similar crime rate as citizens. The only explanation for such a statement is that illegal immigrants are more likely to be repeat offenders.
    I also find it interesting that you quote Lincoln in his desire to encourage immigration (on a Federal basis) when you’ve declared him to be the worst President in history, primarily due to his centralization of powers.

    David,

    “The lack of having that ideal passed to succeeding generations has done more to dilute our capacity to maintain our … cherished institutions than any amount of immigration.”

    Although a painfully true point, I believe that not only are you giving it too much weight, I also believe it to be an unrelated issue. You can’t say that you don’t need to clean up after your sheep because there is so much cow manure. They’re two different animals. They are both a big enough problem to deal with. They both need to be dealt with in a different manner.

    In the nascent United States, the level of immigration was small. The per capita immigration increased throughout the 1800s. By the turn of the century (circa 1900) the level of immigration severely threatened the societal fabric. By the turn of the millennium, about 10% of our population is first generation immigrants, almost half of that due to illegal immigration. Keep in mind that these are the official government numbers.

    Meanwhile the lack of passing ideals to the next generation of natural-born citizens is due to many forces disintegrating the family (mainly government programs including public schools).

    Differences include that the lack of passing ideals to the next generation is a gradual change that allows for natural evolution of society across generations. Immigration in large percentages is an unnatural way of changing society that can have immediate and severe impacts. Additionally, much of the natural-born citizenry are having fewer and fewer children per couple. Meanwhile immigrants tend to have very large families. We’ve probably all seen the following quote:

    “In the first place we should insist that if the immigrant who comes here in good faith becomes an American and assimilates himself to us, he shall be treated on an exact equality with everyone else, for it is an outrage to discriminate against any such man because of creed, or birthplace, or origin. But this is predicated upon the man’s becoming in very fact an American, and nothing but an American…There can be no divided allegiance here. Any man who says he is an American, but something else also, isn’t an American at all. We have room for but one flag, the American flag, and this excludes the red flag, which symbolizes all wars against liberty and civilization, just as much as it excludes any foreign flag of a nation to which we are hostile…We have room for but one language here, and that is the English language…and we have room for but one sole loyalty and that is a loyalty to the American people.”
    –Theodore Roosevelt

    This echoes Connor’s quotes from our founding fathers.

    If immigrants do indeed make their efforts to become in every way an American, they may be the saving grace of our nation. If not, and we combine that with the lack of passing our ideals to successive generations, they will only add fuel to the already existing fire destroying what remains of our culture.

  19. David
    July 16, 2010 at 9:38 am #

    Carborendum,

    I think you misunderstood me because what you said basically agrees with what I meant. On the issue of preserving the American ideal, just because I highlight the lack of that preservation amongst us “native” Americans does not imply that I believe that immigrants can have no diluting effect on that ideal. My statement was a response to the quote by Rep. Johnson which implied that the problem was primarily caused by immigrants. I was simply pointing out that there are too many cow pies in the field to pretend that sheep dung is the cause of the manure problem. Yes they each need to be fealty with and there is not a single solution for the dual problem but it was Rep. Johnson, not me, who was pretending that only one animal was to blame.

    Your quote from Teddy Roosevelt harmonizes with my reference to American by Choice in my previous comment (go read that if you care to know where I am coming from) but his quote has little meaning until we have established what constitutes “becoming in very fact an American.” Personally I suspect that my definition is not the same as Roosevelt’s who was not a founding father and who I do not believe is equal to any founding father.

    Your comment about Connor’s ideal being a roof which cannot be built without the foundation made me thing that even if we are still working on the foundation we can never build a square roof on a hexagonal foundation. We need to know what the roof looks like if we are to build a foundation to support it.

    Your final conclusion is very true; any group that becomes truly American, whether natural born or naturalized, may become the saving grace of this nation.

  20. Jeffrey T
    July 16, 2010 at 9:45 am #

    Carborendum,

    I, too, believe we need to work on the foundation first. I believe we too often mis-identify the foundation. The foundation is human freedom.

    To many people think that we can’t have freedom until we first have peace, security, and righteousness. This is getting it backwards, though. We can’t have peace or security until we first have freedom. Freedom doesn’t have to wait until we have the rest… indeed it shouldn’t. Freedom isn’t the icing on the cake of America, it is the cake itself.

    If we keep waiting for a more righteous, peaceful generation before we truly believe and have faith in human freedom, human freedom will be an ever elusive goal. If we put human freedom first, at the foundation, then I believe a righteous, more peaceful generation will follow.

  21. David
    July 16, 2010 at 9:54 am #

    Carborendum and Jeffrey,

    I’m starting to think that the foundation and roof analogy between peace, security, righteousness, and freedom is not accurate. I think it would be more accurate to compare those as north, south, east, and west walls. They all support and complement each other. Any one that we build will improve the others and none is able to stand in isolation but we can work on them in any order or (preferably) altogether.

  22. Jeffrey T
    July 16, 2010 at 10:04 am #

    David,

    You’re probably right. I’m just trying to counter what I see as the idea that’s keeping many freedom-lovers from truly following their convictions. They’ll say, “I believe in freedom, as long as a series of other conditions are met *first*.”

    It’s called procrastination.

  23. Aaron Bradley
    July 16, 2010 at 10:44 am #

    Very thought engaging article… took me a while to go through it all, and will likely need to go back through if I want to ensure that I capture the whole thought… having said that, I must confess: I am a native Utahan, however I lived in AZ for nearly 10 years, up until mid 2008. Now that I am back in Utah I must admit that I feel differently about immigration. I served an LDS Mission to the Tempe AZ area, where I spoke Spanish and proselyted directly with – no doubt many illegal – Hispanics. My opinion of the Hispanics, by in large were positive, in part due to the proximity of my efforts and engagement with-in their culture et. al. Immediately after my experience proselytizing I found that the majority of Hispanics seemed to me, to be hard working, decent people, just like most of the Utahans and Arizonans that fall outside the ‘definition’ of Hispanic. Interestingly enough, in early 2008 my opinion – now seasoned by living in AZ, having a newly formed and growing family, working, and being involved with community and municipal organizations – had changed. I felt that AZ was threatened, that civic and economic problems were accumulation, and in large part harmed by illegal immigration. Our country was going to ‘Hell in a hand basket’… so-to-speak. Could this be because I had a prejudice, fostered by a one sided source of information? The answer is: more than likely, yes. Perhaps being too close to the fervor and rhetoric caused me to see the issue through a tinted pair of glasses. Also, however, I am certain there are some relatively honest people engaged in pursuit of illegal immigration measures. I am grateful for your efforts Connor, in bringing to light additional insight to this subject. I had never read, nor was I aware of some of the Sources, rulings, and laws cited in this article. And I, like many others – no doubt – have simply accepted the notion that Immigration is solely under the purview of the Federal Government. Truly knowledge is empowering, and I encourage all to keep researching out this topic… be engaged in our country and government, and community, else we are beholden to ignorance. Thanks for the thought provoking article!

  24. Chris
    July 16, 2010 at 11:20 am #

    First of all, the federal government claims its power to regulate immigration through the Constitution’s grant of a power to “establish an uniform Rule of Naturalization,” U.S. Const., art. I § 8, cl. 4, and to “regulate Commerce with foreign Nations,” U.S. Const., art. I § 8, cl. 3. Addtionally, you pointed out the “protect against invasion” war power as an additional argument. Also, the federal immigration law, if taken as a whole, basically provides the legal framework and pathway from the initial admission of an alien into the United States to their naturalization into a citizen of the United States (although indeed not all the paths provided directly lead to the possibility of that outcome, but with some its provisions like “Cancellation of Removal and Adjustment of Status to Permanent Resident”, naturalization is always hypothetically reachable). Taking all of this together as a whole, I think your argument that the federal immigration laws are unconstitutional is not well supported.

    However, I do believe certain parts of the federal immigration law violate other consititutional provisions. For example, the hotly debated topic in Arizona is police officers checking proof of status for non-citizens. Now, the 14th Amendment directly commands that, “no State may deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The federal government itself is also substantially bound by that same principle in the 5th Amendment, “No person … [shall] be deprived of life, liberty, or property, without due process of law.” One of the protections afforded by both these amendments is the highly coveted “right to ‘liberty’.”

    At odds with the basic principle of the “right to liberty” and “equal protection of the law”, in my opinion is one of the federal laws that Arizona’s state law intends to selectively enforce, INA § 264(e): “Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d). Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.” This is a criminal provision in the federal law, although I’m told the federal government hasn’t been charged anyone with violation of this law, by itself, in over 30 years. Arizona’s state law directs its officers and courts to selectively enforce it against only those aliens who turn out to be unlawfully present and adds additional state criminal penalities (effectively substitute penalties, as the double jeorpardy protection might prevent the federal government from subsequently imposing the federal criminal penalties in its own statute).

    How is being required to carry a document around with you at all times, under penalty of law, unlike being required to wear a prisoner’s ankle bracelet? Maybe it is different because you can still go wherever you want whenever you want, while the prisoner needs official permission to do so, but doesn’t right to liberty also mean you are legally free to decide what to wear and what to carry? Okay, a legitimate public interest is one of the limits on the right to liberty, and that might apply here.

    The real problem, however, is how do you enforce this law at the state level without disregarding the consititutional guarantee of due process and equal protection? If a U.S. citizen is suspected by an officer of being an alien and is asked to show the proof of status that they are required to carry at all times by the law, they need only say they are a U.S. citizen, without providing any supporting proof, and the entire inquiry must end. However, if they just say they are an alien but don’t have the document needed to prove their status with them, they are immediately chargeable for criminal violation of the law. Basically, an officers must use a different standard of interrogation based on whether a suspected person claims to be a U.S. citizen or not. Indeed, how can the initial suspicion that gave rise to this inquiry be based on an equal protection argument?

    l would not be surprised to find the Court ruling at the end of day that this federal immigration law provision is either unconstitutional because it does not provide an equal requirement upon U.S. Citizens to carry a document at all times. How else can fair due process (as well as the Constitutional protection against unlawful searches and seizures provided by the 4th Amendment) be afforded to both U.S. citizens accused of being aliens without documentation as well as aliens falsely claiming to be U.S. citizens.?

    This conclusion, of course, has nothing to do with the authority (or lack therefore of) of the federal or state government to provide immigration laws, but everything to do with the consitutional system of Justice and freedom for all. Any federal or state immigration law must comply with those fundamental standards, and the current federal law and Arizona state law do not.

  25. David
    July 16, 2010 at 11:34 am #

    Chris,

    You apparently missed the point that immigration and naturalization are not the same thing. True, I can’t imagine anyone seeking naturalization without also immigrating but we have ample proof that many seek to immigrate without also seeking the rights of citizenship (naturalization). Nobody is disputing federal authority to regulate naturalization or suggesting that such authority could or should reside at some other level of control. The argument that federal immigration law provides a path toward naturalization fails to legitimize the federal usurpation over immigration. It would be perfectly Constitutional (if completely unnecessary) for Congress to make a law stating that citizenshipwould not be granted for anyone who had not immigrated but to make laws restricting the immigration of those not seeking citizenship exceeds their authority to regulate naturalization.

    You can’t possibly have read Connor’s full post if you still give any weight to the “protect against foreign invasion” argument.

  26. Chris
    July 16, 2010 at 11:50 am #

    I did read most of the article, including the arguments for/against “protect against invasion” war power and immigration control as a state police power argument. However, you incorrectly imply that an immigrant needs to intend to naturalize in order for their immigration to be part of a naturalization process. The individual’s intent does not determine the nature of the regulations they are following.

    Indeed, an immigrant or non-immigrant may or may not intend to naturalize as a result of their entry into the country, and their intentions can and do change after they are here. Their intention doesn’t matter, as I believe that the federal law provides a possibility of naturalization for every type of entry into the U.S., including even an unlawful one. So, the whole immigration framework really is a naturalization process, even for the 7-day non-immigrant visitor to Disney World, because the law provides a ways that this initial entry and travel plan could actually result in becoming a U.S. citizen.

  27. David
    July 16, 2010 at 12:21 pm #

    Chris,

    You missed my point which was that simply because federal immigration law provides a path to naturalization does not legitimize their encroachment on an issue they have no authority to address (and thus it is left to the states or the people). The intent of the immigrant is very important—if they have no wish to become naturalized citizens then the issue of naturalization does not apply. Simply setting foot in America does not inherently begin the process of naturalization. Their intentions may change, but until they desire naturalization the federal authority over naturalization does not apply. Why would the established naturalization process matter for someone who does not intend to seek or exercise any of the rights that come with citizenship?

    This did remind me of a question I had for Carborendum though: how is immigration, on any scale, an unnatural way to change society? Immigration has been part of the changing of society since the first child who decided to leave their parents and strike out on their own, or the first parents who chose to leave where they were and seek a better place for their family (whichever came first).

  28. Carborendum
    July 16, 2010 at 12:52 pm #

    Jeffrey,

    No, I did not misunderstand you. I realize you knew there were multiple issues. If you re-read, you’ll see that I said you “are giving it too much weight” on the lack of passing ideals on. I didn’t necessarily disagree. I pointed out that in early times, there was so little immigration that it wasn’t a large factor. (There I agreed with you). But as the decades rolled into centuries, immigration became a larger factor. Until finally, coupled with fewer children while immigrants have many children, it has become the greater factor of the two.

    Even so, I’m sure you disagree with even this assertion. You believe that the lack of passing on the ideals is still a greater factor even today. So be it.

    I read Johnson’s quote. I had no idea that was what you were referring to. I’m not sure if it is because I was too tired or if you didn’t clearly make said link. Whatever. I get it now.

    I hear what you’re saying about the walls instead of the
    roof. See what I wrote to David below.

    David,

    I perfectly understand the principle that freedom is a forerunner of peace. But consider what I said. We need to EARN peace. Peace doesn’t come because we are free. Peace comes because when given a little freedom, we use it for peaceful endeavors. They are iterative. You start with a little freedom (so yes, the cycle begins with freedom). Then you prove yourself by showing forth righteousness. Then you have a little prosperity and peace. This provides you more freedom…Then we have to worry about the prosperity-pride-bondage cycle. Iterations within a phase of a cycle. Gee that sounds complex.

    So, basic freedoms are the foundation. Then the walls consist of righteousness, prosperity, and peace. Then the next floor is more freedom. Then we can build the walls with further RP&P… Eventually the roof is the ultimate world peace – the millennial era. But the PPB cycle prevents us from reaching that – at least for now.

    You think this is wrong? The Book of Mormon shows the iterations as well as the cycle. My commentary about the peace brought about through righteousness (not a change in governmental policy) is an example. Consider that I did not say that we shouldn’t have freedom within the US. But when you go international, it is a whole different area. You’re entering another house, not building your own.

    It would be foolish of you to say that anyone who believes “righteousness begets freedom” is wrong. The founders believed it. They weren’t pure libertarians, and they may not have used the word “righteousness”, but you know what I mean. They knew the Articles of Confederation didn’t work. They realized that a certain level of governmental power beyond the libertarian ideals was required for a peaceful & prosperous society. I don’t have my book with me. What did they call it? The “ideal center” or something like that. It meant that you shouldn’t have too much freedom or too much government. But a proper balance. They aimed for that balance in the Constitution. I believe that balance was further towards tyranny than what the Articles called for simply because we weren’t ready for it. But they also warned that this government was only sufficient for a moral and religious people.

    They were afraid that the people of THEIR time weren’t moral enough for it. However, because of the revolution and the many years through the Articles of Confederation, they had earned at least that much. If they believed that of their time, do you think I’m too far off the mark for believing that we should be worried (not about what we as Americans will do, but) about what foreign nationals and foreign governments will do today with the freedoms that Americans have earned?

    Like always, it begs the question: how much is too much? Well, for one thing, whatever changes are made need to be done gradually by the voice of the people. We apparently weren’t good enough for the Articles (which I believe a very righteous people could have made work). But the Constitution was strong enough for a fairly descent people.

    I wonder if there is some analogy to be drawn with Moses and the broken tablets here. Just as the Jews of old twisted the original law (which some good Jews, such as Nephi, could perceive the true purpose of) into a very convoluted set of laws that governed every aspect of their lives, we have taken the original Consititution and twisted it into an all powerful Federal government that is beginning to control every aspect of our lives.
    But eventually, we will be given something even better than the Constitution. And I’ll bet it will be after we are scattered and smitten. Then a great spiritual leader will give us something better, but it will be difficult to keep due to persecution…

    Am I going off topic? Sorry.

    A “REAL AMERICAN”. A few items to qualify:

    1) Have some understanding and appreciation for the history & principles of the American Revolution, the Declaration, and the Constitution. It sure wouldn’t hurt if people spent some time studying them once in a while. I don’t necessarily mean you need to have memorized a bunch of stuff or anything. But that you “get” the ideals and principles found in the Declaration more than anything.

    2) Believe we are all children of the same God and that we can best serve Him by serving each other, working hard to take care of our families, being honest, and dream for ourselves, our children, their children, and our fellow men.

    3) Believe that family is the basic unit of society and that no greater happiness comes than from within a happy family.

    Does that work for ya?

  29. Chris
    July 16, 2010 at 1:01 pm #

    RE: “Simply setting foot in America does not inherently begin the process of naturalization. ”

    We are just going to have to disagree on this point. The intent of Congress and the actual meaning and effect the law is what is important for judging constitutionality of a statute, certainly not the varying and questionable intent of individuals who are using (or misusing, depending on your point of view) the system that the law creates.

    A review of the Immigration & Nationality Act reveals that the federal immigration law is structured as a complete (and very complex) naturalization process from start to end. In the law, naturalization is the premised ultimate objective of all immigrants, and in fact a finding of permanent ineligiblity for naturalization is a strict ground for removal or deportation.

    Because some immigrants choose not to seek admission to U.S. citizenship does not mean they are not participating in a natualization system, because the law is structured to allow immigrants considerable flexibility in determining how long their naturalization process will take (allowing even indefinite planning) and it always permits them to instead leave the country and abandon their progress. In some cases, such as under the Child Citizenship Act, they are even given U.S. citizenship by operation of law (without application or oath) simply because they are here and the right conditions emerged.

  30. Jeffrey T
    July 16, 2010 at 1:20 pm #

    In the law, naturalization is the premised ultimate objective of all immigrants, and in fact a finding of permanent ineligiblity for naturalization is a strict ground for removal or deportation.

    Then the law based on absurdly false premises, and should be repealed. The truth of the matter is that immigrants often have not intent to be naturalized, and if the law assumes they do, then the law is false.

    Just because it is built into the law, doesn’t mean it isn’t a usurpation of power.

  31. David
    July 16, 2010 at 1:21 pm #

    Carborendum,

    It looks like you got my name and Jeffrey’s name switched in your response but I think we are coming to a more common understanding. I was the one who asked about what makes a real American though and whole-heartedlty agree with items 1 and 3. I do think that someone can be a real American without fully believing all the points of the loose religious framework you have outlined in item 2.

    Chris,

    I can’t comprehend how you could think that the intent of Congress is more salient to the issue than the intent of the individual immigrant. It does not matter how long and how loud government officials declare that an immigrant is “on the path to naturalization” if that immigrant has no intention to be naturalized, just like the fact that no matter how many people insist that I own a dog will not make it true.

    The standard for judging the Constitutionality of any statute is the text of the Constitution, not the intent of Congress.

  32. Jeffrey T
    July 16, 2010 at 1:26 pm #

    Carborendum,

    Re-read the comments carefully. I think you’ve confused me with someone else.

    Human freedom isn’t a privilege to be earned. Governments don’t grant us freedom because they “think we can handle it.” Freedom doesn’t (shouldn’t) have prerequisites.

    Of course, an unrighteous free society will fall. But that doesn’t mean we take away freedom. That’s like saying that a business should have the right to fail, but ONLY if they don’t do anything stupid enough to actually fail, because then we need to step in and bail them out. The truth is, if a business truly has a right to fail, then it will sometimes fail.

    The same is true for societies. We can’t turn to tyranny once we’re “not righteous enough” for freedom. If that is our constant resort, we’re not really free. Because if we’re truly free, then we’re free to be unrighteous. If we step in and take our freedoms away once we make that unfortunate mistake, then we were never free in the first place.

    A free society is not an ideal for a distant paradise… it is an ideal to be strived for now. Even if that means allowing wickedness. And even if it means we fail.

  33. Chris
    July 16, 2010 at 1:49 pm #

    “Then the law based on absurdly false premises, and should be repealed. The truth of the matter is that immigrants often have not intent to be naturalized, and if the law assumes they do, then the law is false.”

    “The standard for judging the Constitutionality of any statute is the text of the Constitution, not the intent of Congress.”

    You folks have it backwards. Laws tell people what they have to do, not the other way around. This country is not a democracy.

    Congress or the Courts decide when law is absurb and should be repealed. We all know that the federal immigration law is absurb and unenforceable as currently written. Arizona thinks they can make it work, but they already find themselves facing the same challenges that the federal government has already wrestled with. Since Congress refuses to act to change the law for better, we are left with an unworkable immigration system that cannot be enforced. The lawsuit from the federal government against Arizona is least democratic way to change the law, but since Congress is not acting, the Judicial branch is going to have to make whatever changes it can instead.

    I don’t think, however, you could ever sucessfiully make the argument that people’s intentions can dictate what a law really means. And there is no reason why the naturalization process cannot start with the application for a visa from a U.S. embassy abroad or the illegal border crossing, as it technically does today in both cases. The better question is, can a state like Arizona pass a state law that would issue its own visas or legalize the status of immigrants found in its jurisdiction, so long as naturalization is not included in this state procedure? There you might have a better argument in favor of state powers to regulate immigration exclusively, but we know the states’ interests are not in that direction.

  34. David
    July 16, 2010 at 2:02 pm #

    I don’t see how using the text of the constitution to determine the constitutionality of a statute could be considered backwards. Laws do not tell people what to do, they tell people how to do things, they tell people what not to do, but your assertion implies that the law can tell immigrants that they must become naturalized citizens simply because they stayed here for some specified period of time or under some specified conditions rather than that they MAY become naturalized under such conditions.

    I did not mean to imply that the intentions of the individuals dictated what the law meant. What I meant was that the intentions of the individuals were instrumental in determining what law was applicable to that individual. An individual who is not seeking naturalization is never required to renounce any other allegiance under oath while an individual who is seeking naturalization is required to do so.

    Naturalization may begin with application for a visa but that does not mean that application for a visa implies that they are headed to naturalization. Just because I am headed south on I-15 in Salt Lake does not mean that I am going to Las Vegas and subject to Nevada’s rules for establishing residency.

  35. Jeffrey T
    July 16, 2010 at 2:07 pm #

    Chris,

    Naturalization is just like getting a driver’s license. I can move to Colorado if I want. I can live there all I want. I just can’t drive until I get a driver’s license there (assuming I don’t have one from somewhere else). Colorado can certainly make rules whereby I can obtain a license, but it can’t tell me I can’t live in the state just because I don’t have one.

    Imagine if Colorado, upon making the rules for getting driver’s licenses, decided to premise their rules on the assumption that EVERYONE who moves there is going to get one. Therefore, they could then regulate the movement of people across the border under their driver’s license regulations (because crossing the border means automatically wanting and obtaining a license… or perhaps might lead to that desire). We would all cry foul… because moving to Colorado and getting licensed to drive in Colorado are two entirely different things. If Colorado’s licensing laws assumed that all migrants were to be license, and therefore claimed complete authority over their movements, we would ALL treat that as a usurpation of power.

    Yet that is exactly what you are saying.

    Moving to the U.S., and becoming “licensed” to vote in the U.S. (naturalization), are two different issues, and to assume otherwise is a usurpation of power.

  36. David
    July 16, 2010 at 2:09 pm #

    I should clarify that last paragraph:

    Just because I am headed south on I-15 in Salt Lake does not mean that I am going to Las Vegas and subject to Nevada’s rules for establishing residency—even if the Nevada legislature writes their laws for establishing residency to say they apply to those headed South on I-15 from Salt Lake or North on I-15 from Los Angeles.

  37. Chris
    July 16, 2010 at 2:23 pm #

    “Your assertion implies that the law can tell immigrants that they must become naturalized citizens simply because they stayed here for some specified period of time or under some specified conditions rather than that they MAY become naturalized under such conditions.”

    The law tells immigrants that they must maintain eligibility to seek naturalization as a condition of entry into the U.S. (including even illegal entry) and continued stay. Absent evidence to the contrary, this will also be presumed. However, there is no required deadline on when the actual naturalization must occur, if ever. There also are many requirements that make it difficult to reach the point in the process when the final application in the process may be submitted or approved. But as long as it is theoretically reachable, this process qualifies legally and constitutionally as a naturalization process.

    “Just because I am headed south on I-15 in Salt Lake does not mean that I am going to Las Vegas and subject to Nevada’s rules for establishing residency.”

    Upon entering the jurisdiction of the State of Nevada, you are subject to all its laws and regulations. You have the immediate right to take up residency in the State as well, even if you didn’t intend to do that. Surely you know this.

    And the state’s rules for establishing residency do apply to you immediately. If Nevada is like most states, I believe the rules say that if you have no other permanent place to live and will remain in the state for more than 30 days, you must change your driver’s license and re-register your vehicle, and file a part-year state resident income tax return for the period you were living there (if Nevada has a state income tax), even if you plan to leave for another state after 60 days. Maybe you will stay. Maybe you won’t. But for the period you meet state’s rules for residency, you are a legal resident there even though you didn’t intend to be.

  38. Jeffrey T
    July 16, 2010 at 2:26 pm #

    The law tells immigrants that they must maintain eligibility to seek naturalization as a condition of entry into the U.S. (including even illegal entry) and continued stay.

    And here lies the problem. The Constitution allows the Federal government to set the rules by which someone may be naturalized, not the criteria they must meet in order to come here. Thus, this part of the law exceeds the grant of power the Constitution gives.

    Setting the conditions of entry is NOT the same thing as setting the conditions of naturalization.

  39. David
    July 16, 2010 at 2:33 pm #

    Upon entering the state of Nevada and with no other place of permanent residency is a long way from simply heading south on I-15 from Salt Lake City.

    Notice in your own comment that I have the right to seek residency but the state cannot make menchange my drivers license if I do not seek residency.

    Applying for a visa is a long way from intending to become a naturalized citizen even if Congress claims that applying for a visa is on the road to naturalization. Congress has reached outside it’s Constitutional authority just as the Nevada State legislature would have done if they tried to regulate all southbound drivers on I-15 in Salt lake City.

  40. Chris
    July 16, 2010 at 2:43 pm #

    “And here lies the problem. The Constitution allows the Federal government to set the rules by which someone may be naturalized, not the criteria they must meet in order to come here. ”

    Not a problem at all — the rules by which someone may be naturalized simply begin with them applying to enter the country or actually entering the country. Following this naturalization procedures is a mandatory criteria for entering the country, willingly or unwillingly.

    You cannot choose not to be subject to the laws, though you may choose to violate them subject to possible civil and criminal penalties. That is the framework and constitutional authority of the federal immigration law, as I have been saying.

    The only persons excluded from this naturalization process are diplomats and their immediate family. No one else is exempt from this immigration and naturalization law.

  41. David
    July 16, 2010 at 2:52 pm #

    It’s funny that Congress chooses to ignore the Constitution to make the laws that you now argue that people cannot ignore. If the laws are not Constitutional then it really does not matter what Congress’ intent was in making those laws. the Constitution is the highest law of the land, not the statutes passed by Congress (which would not even exist without the Constitution).

  42. Jeffrey T
    July 16, 2010 at 2:56 pm #

    Not a problem at all — the rules by which someone may be naturalized simply begin with them applying to enter the country or actually entering the country.

    Congress has no power to make them apply to enter the country. The Federal government has no power over the migration of people at all. It isn’t in the constitution.

    Just because Congress makes immigration a pre-requisite to naturalization doesn’t give it power to set the criterion of immigration.

    Congress can set the criterion for naturalization. It can’t set the criterion over immigration.

    How hard is it, Chris, to understand the simple distinction?

    It would be like a professor saying, “I have been given power to set the criterion of who takes my course. I therefore have power to determine who can attend the university at all, because attending the university in general is the first step towards taking my course.”

    It’s bogus logic, and you know it.

  43. Chris
    July 16, 2010 at 3:03 pm #

    “Notice in your own comment that I have the right to seek residency but the state cannot make me change my drivers license if I do not seek residency.”

    They can do it, they just haven’t done it that way. Don’t confuse what the law actually says right now with what it could say. Nevada could make you get a gun license before you may buy or bring any gun into their state, and if you don’t do it, you could go to jail. Some states like Floria actually require part-time residents to get state-only driver’s licenses or you will get a ticket. In all cases, you are required to follow the law, even if it isn’t fair to you or you don’t want to do it. The same thing with immigration and naturalization.

    As a case in point, I think Arizona absolutely should be requiring all its residents and temporary visitors to obtain state ID cards in order to implement its immigration enforcement law in a constitutionally enforceable way. Temporary visitors might be able to get them through their hotel front desk at check-in. Failure for anyone to carry this state ID card (which would require citizenship or immigration status verification to be issued) would be a purely state offense for not having a card. That is a perfectly constitutional remedy for them in my mind. And the federal government would have no case against them. So why do they stupidly think they can simply enforce the broken federal immigration law? The problem is they are not brave enough to require their citizens to carry ID at all times.

  44. Jeffrey T
    July 16, 2010 at 3:09 pm #

    Chris,

    Let me repeat my example, since you haven’t responded to it.

    Just because Congress makes immigration a pre-requisite to naturalization doesn’t give it power to set the criterion of immigration.

    Our nation is composed of two groups of people: non-citizen residents, and citizen residents. Naturalization is the movement between one group and the other.

    It would be like a professor saying, “I have been given power to set the criterion of which university students take my course. I therefore have power to set the criteria of who can attend the university at all, because attending the university in general is necessary in order to take my course.”

    You know that is a bogus argument.

  45. David
    July 16, 2010 at 3:11 pm #

    Regulating part-time residents or people who are seeking a specific privilege (driving on their roads as a full- or part-time resident) is very different than regulating some who simply wants to be in the state. Yes, coming to the country or the state means that a person is subject to the laws there but just because a statute is passed does not guarantee that the statute is itself legal. Just because Congress says that stepping foot in the U.S. is part of the naturalization process does not mean that the Constitution actually authorizes Congress to regulate whether people come here.

  46. Chris
    July 16, 2010 at 3:27 pm #

    “The Constitution is the highest law of the land, not the statutes passed by Congress (which would not even exist without the Constitution).”

    Read it much more closely. The federal power is much broader than that. The federal laws are also supreme.

    “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”

    If the law exercises a federal power like the naturalization process, it is superior. The flawed premise here is that somehow immigration rules can be separated from naturalization rules. They necessarily cannot. And where the naturalization law has become so broad that it stipulates the entire process from before the alien even enters the country, the immigration process itself has become embedded.

    You folks insist the states have the right regulate immigration alone. Maybe they do. But once an alien were to physically enters their state under a state-issued immigration visa or something, they immediately would fall under the federal naturalization law and the state would not be able to remove them or do anything to them in conflict with the federal law governing immigration leading to naturalization. “Immigration” is not a mere prerequisite to naturalization under the federal immigration system, it represents the system’s highest, final immigration status (technically referred to as “admission to citizenship” on your naturalization certificate).

  47. Chris
    July 16, 2010 at 4:07 pm #

    “It would be like a professor saying, “I have been given power to set the criterion of who takes my course. I therefore have power to determine who can attend the university at all, because attending the university in general is the first step towards taking my course.”

    It’s bogus logic, and you know it.”

    Your logic is bogus and backwards, and you know it. A university professor is a perfect parallel example to the immigration and naturalization process.

    The University has the sole power to admit the student into the degree program that the professor’s course is part of. The professor really can’t choose who registers or shows up for his course. If an unregistered student is found to be taking the course, it is the University that is responsible for correcting the student’s status or removing him. The professor’s responsibility is to teach the course, administer the assignments and exams, and issue the grades. Maybe he can ask the University to remove a student for bad behavior or failing grades or being unregistered. But that’s it.

    The University sets student policy and can require that all its students are degree-seeking in order to attend the institution, even if they haven’t been formally admitted or matriculated yet. The University has the sole authority under its charter to decide on degree program requirements, and that includes admissions into the program. Finally, the University can allow students to take extra courses outside the requirements of their particular degree program and doesn’t have to force students to apply for graduation once they’ve received the sufficient number of credits to complete the degree (the students can also choose to keep studying and earning more credits than they need). The University also can choose to disallow certain earned credits from being used towards meeting degree requirements, and a plethora of other things. But this all is in the context of the University’s degree programs, which all students are deemed to be actively participating in unless they leave the University permanently.

    In the story above (which is the truth at most real universities), the University is analgous to the federal government, the professors are analogous to U.S. states, and the degree-program is analogous to the naturalization process. The professor can teach non-degree seeking students outside the University campus on his own if he wants to, but to enter the classroom on the campus the students are subject to University rules and regulations governing admission, registration, and degree requirements at all times. This is how the federal immigration system actually has been modeled and where its constitutional authority to regulate immigration comes from.

    You guys are never gonna win the argument to the contrary—the Constitution’s wording of a, “To establish an uniform Rule of Naturalization” is very broad and encompasses not just the act of granting naturalizations, but rulemaking powers on how non-citizens may enter the country and receive that outcome, whether they want it or not.

    For example, adopted foreign children may not want U.S. citizenship for being brought into the U.S. by their new U.S. citizen parents, but they do get it automatically anyway. Nor can eligible lawful permanent residents eliminate the fact that they may now apply for actual naturalization—the right is there whether they want it or not, it is just U.S. current law that gives them the option to postpone applying indefintely and at the same time remain in the country legally. (other countries might deport you if you failed to apply for naturalization once eligible to do so)

  48. David
    July 16, 2010 at 4:37 pm #

    Chris,

    You are ignoring the fact that federal laws are only supreme insofar as thy conform to the Constitution. The supremacy clause assumes that the federal laws in question conform to the Constitution and is meant to stipulate that state laws cannot countermand legitimate (read “constitutional”) federal statutes.

    You have also obviously not worked for a university, many professors are given broad latitude, independent of university admissions, to determine what criteria students must meet to register for a given class and even to admit or refuse specific students. Despite that authority, what a professor cannot do is award university credit to a student who has not been admitted to a degree program at the university. It’s called separation of powers.

    While aliens entering under some state issued visa would fall under federal law for purposes of naturalization you have completely shut your eyes to the fact that federal law related to naturalization is constitutionally only permitted with regard to granting the right of citizenship and does not, under the Constitution, extend to regulating simply being present in the country. States cannot grant citizenship (university credit) but they should be able to allow non-citizens to enter, work, and live just as a professor may allow people who have not been given student status to attend their classes and even complete assigned homework.

  49. Brandon
    July 16, 2010 at 4:46 pm #

    Wow. Chris, I’ve been watching this back-and-forth between you and David and Jeff, and I have to say, it seems like you guys are talking past each other.

    Many of the attempted analogies (Nevada, universities) are faulty for the primary reason that in both cases these entities are invested with the final say in the matter. The States have plenary police power, and a university (assuming a private one for the moment) governing body has the final say on student admission and registration.

    The same can not be said of the federal government. Federal law is supreme, but only those “made in Pursuance” to the Constitution. Connor’s (and David & Jeff’s) argument is simply that, despite whatever current federal immigration law may say or source of authority it may claim (via the Constitution), over immigration, such claims false. You obviously disagree with that position, but to simply reassert over and over that “Yes, the Constitutionally granted power to regulate naturalization necessarily includes the power to regulate immigration” doesn’t prove your assertion.

    It’s very simple. For example: Congress can, by law, require that a person seeking naturalization must have been an uninterrupted resident of the United States for X number of years before being eligible. Fine. But how does such a requirement give them the legal power to then determine who can enter and reside in the United States? As has been said: how can you not understand this simple distinction?

  50. Chris
    July 16, 2010 at 5:12 pm #

    I believe I have been explaining several times how the inclusion of the immigration into naturalization process is how the federal government has constitutional authority over immigration, but it seems like no one is getting it. The naturalization requirements are not only that someone has legally resided in the U.S. for so long, etc., but also that they obtained this residence, etc. with federal approval and supervision.

    Maybe we can try this another way. With the famous “commerce clause” (which also may grant the federal government authority to regulate immigration, as immigration also could be said to involve interstate commerce in the area of labor and employment), the Supreme Court has clearly stated that any state law that even touches upon a federal authority (the commerce authority in particular) can be entirely pre-empted by the federal government in furtherance of the federal objective. This is how the federal government legally regulates a host of things that are seemingly state matters, including food, drugs, healthcare, wages, civil rights, etc.

    Even if you folks won the argument that entry into the United States cannot be considered part of a naturalization process (which I believe is a severely flawed argument), you still would lose under the Court’s argument above because immigration touches upon naturalization so closely that the federal government’s naturalization authority needs to extend to pre-empting any state immigration power in furtherance of the federal naturalization objective.

    The bottom line is the federal government’s power under the Constitution has been interpreted by the Supreme Court to be much broader than the very narrow interpretation being championed here. A comprehensive naturalization policy requires the requires that the federal government to also have immigration regulation powers. And so while this power is not stated as directly in the Constitution as you folks would like it to be, it is neverthless there through the naturalization clause primarily and the commerce clause alternatively. And you can be assured that is how the Courts will rule in its favor of the government if/when needed.

  51. David
    July 16, 2010 at 6:37 pm #

    In other words the Constitution is essentially meaningless because the commerce clause and the general welfare clause (and in this case the naturalization clause) allow Congress to do anything they want and thus the idea of a government limited to ennumerated powers is a myth.

    At least we know clearly where you stand.

  52. Chris
    July 16, 2010 at 7:00 pm #

    The Constitution is not meaningless and the federal government can’t do anything it wants, but certainly the expansion of the federal government’s power into more and more the state’s realms in the 20th century (including immigration) is due to this trend of the Supreme Court broadly interpreting the extend of its powers. There are still limits to those powers, though. But immigration is clearly a federal power flowing from, if not included in, the naturalization rulemaking power primarily and/or the commerce clause and foreign relations powers. Immigration policy is not a legitimate state interest.

    For the record, the following issues I believe the federal government has gone too far and is overstepping its constitutional authority:

    1) Defense of Marriage Act
    2) Real ID

    On the other hand, states like Arizona do not have the proper power:
    1) To deprive U.S. born children of their constitutional birthright to U.S. citizenship.
    2) To enforce immigration law differently depending on whether someone claims to be a U.S. citizen or not. All persons legally resident within the state must be treated equally (i.e. “welcome stranger” doctrine) with respect to law enforcement and public benefits.

  53. David
    July 16, 2010 at 11:21 pm #

    Have you read the Defence of Marriage Act? I don’t see how it is unconstitutional for Congress to tell the states that they are not required to recognize marriages from other states that contradict their own definition of marriage?

    Also, could you please cite the clause in the Constitution where American-born children receive citizenship as a birthright?

  54. Jeffrey T
    July 17, 2010 at 4:19 am #

    Chris,

    If immigration is not a legitimate state interest, why was it treated as such by Congress and state governments for the first century of our nation? And successfully, as well?

  55. Tom Jones
    July 17, 2010 at 6:47 am #

    I would like to submit a couple of points for clarification.
    1. I find it difficult to assume that we know an individual’s heart. Therefore, I find it disheartening that at every turn, those who have concerns with the current immigration situation or open borders are termed “nativist”, “xenophobe”, or “racist”. I believe that when you assume the reason for someone’s concern without finding out that concern, you limit your ability to discuss and also to discover. I would submit that you are unable to counteract someone’s concern without resolving that concern. The “nativist” argument in immigration discussion is about as beneficial as the “racist” argument in national health care debate. It assumes an easy target for the detractors. When in reality, your detractors may be the ones who help you refine your argument to cover all ground.
    2.One of the reports used to justify amnesty is by the “Center for American Progress”. This organization is anything but vigilant in standing for freedom and Constitutional Principles. Connor, do you also agree with their reports on the latest Federal Healthcare legislation? In what way is their report on immigration and wages more rigid and accurate than other competing reports? I don’t know, I am asking. I do know that, based on their agenda, I have difficulty accepting their publications without a great deal of scrutiny. I haven’t had time to review this one yet.
    3.Mohammend Atta came into the country legally, but overstayed his visa, resulting in a status of illegal. Would the amnesty proposal have granted Mr. Atta amnesty. And if not, why not?
    4.While I agree that we shouldn’t have entitlement programs, if we grant amnesty at this point, would we not be doing a grave disservice to current American citizens who would be required to pick up the tab for entitlement programs for those who are now legally here? I would submit that before amnesty can be granted, the Federal and State governments need to stop entitlement programs. Otherwise, amnesty just exacerbates this problem. One is then able to point to the even greater number of people dependent on these programs, and the chances of getting rid of them (while almost impossible now) are even smaller.
    5. As one of those who’s main concern is security, how do you propose Arizona should handle the drug cartels invading their territory, private property being vandalized, citizens being threatened, and a section of the state becoming so dangerous that armed border patrol are not allowed to go there? Does the Federal Government have any responsibility to secure Arizonans from these threats to personal liberty? Other than standard law enforcement for vandalism, etc., does Arizona have any recourse on these issues?

  56. Chris
    July 17, 2010 at 8:26 am #

    Immigration was a state interest in the first 100 years of the country (mostly prior to the Chinese Exclusion Act) because the federal government had not exercised its authority. Lacking federal action in an area of federal responsibility, the imperative becomes a state interest, and there is no federal law existing to pre-empt the state action. That is not the case today—while the federal law is unworkable, it is comprehensive and there is very little room left for state action. Arizona’s action is based on state law enforcement (i.e. police power) of the federal statutes, and the extent to which it may do so is highly controversial.

    The 14th Amendment to the Constitution provides all U.S.-born children with citizenship as a birthright: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The only persons excluded from this definition are the immediate family of diplomats with diplomatic immunity from U.S. jurisdiction.

    And even if you disagree with that (after the Civil War, for example, there was argument of a distinction between U.S. citizenship and state citizenship using the Amendment’s language), the Immigration and Naturalization Act (INA) Sec. 301. [8 U.S.C. 1401] declares it even more straightforward: “The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof” and that would pre-empt any state action to the contrary under the federal naturalization authority.

    Regarding DOMA, the definition of marriage is not a legitimate federal interest in general and that is the unconstitutional part of the law. In general, marriage is the exclusive domain of the states, and the broad spectrum of federal laws and regulations that it affected exceeded the federal government’s constitutional authority and served only the purpose of complicating matters and punishing states and same-sex couples which support a different marriage definition. Only in limited areas (like perhaps immigration, an exclusively federal domain) may the federal government choose to apply a different defintion of marriage.

    Perhaps the only constitutional part of that law is the ancilliary provision that you mentioned about allowing states to decide whether they will recognize marriages performed in other states, as U.S. Const., art. IV § 1 states: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” Whether DOMA exceeds that constitutional mandate in allowing a state to refuse all recognition of certain marriages, I’m not sure. The state is still obligated under the Consititution to provide equal protection of the laws under the 14th Amendment, and allowing states to discriminate in their recognition of marriages of other states based solely on the sex of the parties listed on the document might be in violation of that.

    Finally, responding to Tom Jones’ inquiry, I think it is a federal responsibility to protect Arizona from the foreign incursions at the border that you mention, and failing to do so, I think Arizona would be justified to take the matter into its own hands and mobilize its state National Guard to confront the border incursions as a war zone. Obviously, though, that would be very expensive and the federal government has much better resources available to it and the obligation to provide such services. Perhaps a state lawsuit against the federal government could provide and court order of affirmative action?

  57. David
    July 17, 2010 at 10:08 am #

    Please don’t cite the Immigration and Naturalization Act as a Constitutional birthright. I forgot to consider the amendments when I asked the question so your reference to the 14th amendment was what I needed.

    I agree that it is not the place of the federal government to define marriage but because they differentiate by marital status for a variety of federal incentives they have to have a working definition or else they would be at the mercy of the varying definitions of the states and the citizens of each state would be forced to financially support definitions of marriage from other states that they opposed. Really this is all a symptom of our dysfunctional tax code and further proof of how generally Congress ignores the Constitution.

  58. Chris
    July 17, 2010 at 10:40 am #

    The federal government actually has operated just fine for 200 years without a federal defintion of marriage. State definitions have varied considerably over the period as well, including varying age, racial, familial relationship, income, medical, and parental consent requirements, which in some cases were considered offensive to other states (mixed race marriages prior to the civil rights movement, marriage of a 13-year old, etc). The ability to have children also has never before been a legal requirement of marriage, particularly when elderly people get married.

    The federal government was always able to honor these state marriage certificates without applying further standards. Then DOMA comes in 1996, with no legitimate federal concern or justification, and argues the marriage needs to be a man and a woman to qualify in every federal instance. You can see why that law is going out the window.

  59. David
    July 17, 2010 at 11:09 am #

    How many of those over 200 years was the Federal government offering incentives and benefits based on marital status? (hint: well under half of them so don’t bother to lean on all that history to support this tangent) Once they started offering such incentives and benefits how many of the marriages in the nation, regardless of how widely varied the states definitions were, conformed perfectly to the definition found in DOMA (which says nothing about requiring that the couple be capable of bearing children) up until at least 1990? I’d bet that it was around 99% that conformed to DOMA but by 1996 it was obvious that a new type of marriage was being promoted which would be reprehensible to no small portion of the nation. Congress decided to be proactive and head the issue off at the pass. Of course Congress being proactive usually leads to trouble.

    Now let’s drop DOMA since it has nothing to do with immigration.

  60. Neil
    July 17, 2010 at 11:06 pm #

    The globalists want open borders to destroy this country and constitution so we had better take notice. I agree with Ronald Reagan, “A nation without borders is not a nation.” America should have controls on who enters her borders. I agree all humanity is born free and with inalienable rights even without being a American citizen. I’m here in Mesa, AZ 5th generation and I see the bad and good that comes from open borders. I own a small business and immigrants do contribute to the economy. I want them to be able to come here, but there should be some way it can be done orderly and documented. It seems like quite a few just come here for the money and not to share in the freedom we enjoy. To me that’s not what America should be about, striking it rich. You should also give up your citizenship in the country you are wanting to flee to show your dedication. America is a frame of mind and if that frame of mind is destroyed so is America. Its just like joining the Church not everyone can become a member unless they meet some expectations. If it wasn’t that way the church would suffer.

    The Arizona law just past here I feel is just a ploy for Jane Hull to get reelected. She was suffering badly at the polls until she piggybacked the State Immigration law. Politician do this all the time around election season, Sheriff Joe is one of the best at it. I see at least a hundred immigrants every morning driving down Broadway in between Country Club Rd. and Gilbert Rd. and nothing is ever done to them. Locals know exactly what and where I’m talking about. So I will be very surprised if they disappear when this law becomes active. I must say I know some have left because there are for rent signs everywhere down Broadway. I don’t know if some are leaving because lack of work or this new law or both. But even with all these factors at play there are still good numbers standing on the corners. I don’t blame them they are just trying to feed their families like me.

  61. Brandon
    July 18, 2010 at 3:16 pm #

    but also that they obtained this residence, etc. with federal approval and supervision.

    Circular argument: you’re citing current immigration law that states that immigration must be legal to qualify for naturalization in order to “prove” that this requirement is constitutional. Sorry, doesn’t fly. Because Congress is given the power in the constitution to set the rules for naturalization does not mean that ANY naturalization rule they wish is, ipso facto, constitutional. In other words, Congress can’t possibly use “permitted entry” as a requirement for naturalization if they have no authority to permit or deny entry in the first place. This is patently absurd.

    The bottom line is the federal government’s power under the Constitution has been interpreted by the Supreme Court to be much broader than the very narrow interpretation being championed here.

    Citing the fact that the Supreme Court has for over 100 years continually broadening the power of the federal government is certainly not convincing. And you have given explicit approval for the Court’s reasoning in Wickard v. Filburn, which reasoning is precisely what we are rejecting.

    Immigration was a state interest in the first 100 years of the country (mostly prior to the Chinese Exclusion Act) because the federal government had not exercised its authority.

    This type of reasoning I find most ridiculous. It is the same reasoning I get from DEA agents when I ask them why the people and gov’t of the U.S. sought and ratified the 18th Amendment in order to prohibit the sale, manufacture, and transportation of alcoholic beverages, but somehow this type of amendment wasn’t deemed necessary when it came to the anti-narcotics legislation. The short answer is that politics is the art of the possible. It wasn’t possible to federally outlaw alcohol short of amendment, because of how widespread the consumption of alcohol was, but because narcotics and other drug use was done only by a small percentage of the population, the majority of people didn’t care about this unconstitutional usurpation of power. This has been the history of the incremental violation of the constitution: i.e. what they could get away with at the time.

    So in other words, maybe the reason that immigration was a state issue, and the feds stayed out it for the first 100 years, really WAS because it was unconstitutional for the feds to get involved. Ockham’s Razor would suggest that this most simple of explanations is the correct one.

  62. Josh Williams
    July 19, 2010 at 8:51 pm #

    Hi Connor.

    Note. this is TL;DR even for me, and I think for most readers.

    Albert Einstein said: “You do not really understand something unless you can explain it to your grandmother.”

  63. Jeffrey T
    July 19, 2010 at 11:19 pm #

    Josh,

    The article is actually pretty simple and clear. It’s long mostly because he pre-emptively responded to any possible objections. If he had included anything less, he would have had to include the rest in comments in response to objections.

  64. Joshua Steimle
    July 20, 2010 at 12:28 am #

    Connor, you make some good points but you are flat out wrong in one part, that is, the part in which you quote an imaginary opponent of state-controlled immigration as saying “State-controlled immigration laws would be an messy patchwork”. It should be “a messy patchwork”.

    Now I don’t know what to believe.

  65. Connor
    July 20, 2010 at 2:48 pm #

    Josh,

    Fixed the typo. I hope that helps resolve your crisis. ;)

  66. Carborendum
    July 21, 2010 at 3:42 am #

    Jeffrey and David,

    Yup, it looks like I mixed you two up in my notes. I have limited internet, so things happen.

    If you disagree with item #2, you probably don’t fully understand point #1. The history of our laws goes back to English common law which has its roots in several religion, not the least of which is the Law of Moses. In fact most laws that we commonly understand (not the ones where we say, “Who thought of that stupid law”) have their roots in the Law of Moses. Interesting side note: many countries will have their common law roots in either the Law of Moses or the Code of Hammurabi.

    Besides that, the spirit of being an American is believing in the “generic” American religion. That definition is a rough paraphrase of something Benjamin Franklin proposed as the religion to teach the Native Americans as they invited them to be a part of the country. Yes, the founders decided it was important that all citizens have an understanding of God. It was not required to believe. It was only required to understand the principle. This was the guiding light of how we are to behave toward each other. No, it was not law. But it was policy.

    It is so generic that even atheists can believe in a parallel idea. They may not call it “God”, but they believe in some force of good that will motivate and unite, be it personal code of ethics or whatever they will. But the key ideas are unity and service. Not as the government dictates, but as individuals and societal consensus does.

    Freedom/Righteousness cycle:

    I NEVER said that government decides when to give freedoms. God does. This is why I cited the Book of Mormon. You’d think that you would have understood this from the reference. But it looks like you were hell-bent on finding fault with my argument rather than trying to understand what I was talking about. It is the natural evolution of societies that determines how much freedom they have. I even stated as a premise that we start off with basic freedoms regardless of what we’ve earned. These freedoms are Life, Liberty, & Property. From that basic point, it is how we treat those freedoms that determine what further freedoms we as a society can enjoy.

    I recall the joke, “You think we live in a free country or something. But we live in America, where one idiot can ruin it for the rest of us.” What this referred to was some laws that were made because some people took basic freedoms a little too far with disastrous consequences. So the law (unable to make value judgments) had to remove that freedom for everyone in every condition. Try to tell me this has never happened in America.

    Additionally, no one has even mentioned the point that we are talking about interactions with a different country. The Constitution doesn’t have power there. Further, any organization has every right to decide who is a “member” of their club and the mechanisms of that membership. Do we not as citizens of a nation or state have a collective right to recognize who is a member of our group? And do we not have a right to decide by what criteria we make that judgment and the procedures to obtain membership? So it is with states and citizenship. One reason why citizenship laws are the way they are, a person can exercise some legal leger-de-main to gain privileges of multiple citizenships and no responsibilities of any of them. They just have to produce the right passport to the right official.

    No, I believe that when we are talking about relations with other countries where the Constitution doesn’t have jurisdiction, order is an equal partner with freedom. And with the current state of things, we have the worst of both.

    That said, I do agree that current immigration laws are too stringent. I tried helping a cousin figure out immigration laws to get her citizenship. I couldn’t figure out how to do it. It seemed like she couldn’t become a citizen as far as I could tell. With this level of difficulty, it is no wonder why people come here illegally.

  67. David
    July 21, 2010 at 5:15 am #

    Carborendum,

    I tried to “disagree” with item two as softly as I could. In fact I was not trying to reject the idea so much as to suggest that it might bear some rewording if we were using it to define what constitutes a real American. I’m sorry if that suggestion offended you.

  68. JL
    July 21, 2010 at 1:22 pm #

    I wonder where I would be had it not been for brave and courageous ancestors who came seeking refuge from tyrannical rulers, war, and poverty? A place where they had the ability to own land and enjoy religious freedom as well. All of them came well before this land was a nation, not only from Scotland and England but also from Germany, Switzerland, and France (I still have others to track).

    Whatever the immigration policies were in those early years, they were welcomed, and they complied with the requirements.

    Had I experienced the misfortune of being born in circumstances similar to those of these modern immigrants, I too would be risking life and limb to come to this land, warts and all, that is still a land of promise.

    I vote for amnesty and for more generous long-term immigration policies.

  69. Darrel
    July 21, 2010 at 4:50 pm #

    So, your wife watches movies dubbed in Swedish?

  70. Carborendum
    July 22, 2010 at 3:46 am #

    David,

    I don’t get offended easily. And I wasn’t offended here.

    It does, however, bother me when people try to deny God had a hand in creating America (not that you did). So, I just want to remind people about that from time to time.

    At the same time, I also don’t like it when people try to “shove God down my throat”. So, I tried being as broad and generic as possible.

    You asked how immigration is unnatural. I don’t think itis. I was addressing the issue of percentages. In the early days, the vast majority of immigrants were those with similar ideologies as the people who had already immigrated. And the ratio of 2nd generation or later Americans vs. 1st generation immigrants was still high.

    Today, the 1st generation immigrant is making up a HUGE percentage of the population. And the vast majority of that pupulation is of differing ideologies than the Average American.

    I don’t know how this will pan out. It could be good. It could be bad. But historically, it is not a good thing to RADICALLY change the ideology of a country so QUICKLY.

  71. Carborendum
    July 22, 2010 at 4:03 am #

    Melting Pot:

    If I’m making a cheese sauce and I add in different kinds of cheeses, it will melt and create a new flavor. But it is still a cheese sauce.

    If I add other sauces (like tomato sauce) it may or may not continue to function in the same way as a cheese sauce. But as long as it is kept to a minimum, it enriches and enlivens the sauce.

    If I add herbs and spices, some melt or dissolve. Others add texture, color, and flavor. But the overall function of the sauce is still the same.

    If, however, I add half as much tomato sauce as the cheese sauce already in the pot, there is a problem there. It is no longer a cheese sauce.

    Worst: If I add chunks of strong flavored meat into the sauce, it not only doesn’t melt. But it so overpowers the cheese flavor that it doesn’t even taste like a cheese sauce.

    Without a doubt immigrants of other cultures can enhance ours. I welcome them under any system of laws. If they however they choose to overpower our culture with the one they just came from, I have to ask why they left the other country. If it was so great, why did they leave?

    One Russian immigrant (some years after the dissolution of the USSR) told me her husband kept an old flag of the hammer and sickle in his house. He would drink a glass of vodka to it EVERY night saying how glorious it was. I had to wonder why he was living in the US. Here was a man who refused to melt.

  72. Blake
    July 22, 2010 at 6:11 pm #

    Nice insight, Connor. Thanks for sharing your research and interpretation.

  73. Ralph Hughes
    July 25, 2010 at 10:30 am #

    Dr. W. Cleon Skousen wrote in his book The Naked Capitalist: “Actually, what we are witnessing is a very carefully and methodically executed program designed to destroy constitutional government as we have known it and make a shambles of the society which has wanted to keep the Constitution alive. Only then can a highly centralized, socialist state be established….To achieve this, the middle class in America must be ruthlessly squeezed out of existence.” I view the massive immigration from and thru Mexico as part of that program. A review of members of government who have been powerful proponents of amnesty for illegals and an open border with Mexico goes a long way in reinforcing my convictions. We are in a war, and as is often the case in war, innocents are used as pawn of the instigators of war.

  74. Brandon
    July 25, 2010 at 12:02 pm #

    Dr. Skousen had a lot of good things to say, but he wasn’t right on everything. For example, he also believed that gov’t should protect the people from monopolistic business practices, essentially legitimizing the Sherman Anti-Trust Act and other such laws. Sounds good on the surface, but in reality these laws are abuses of liberty and have done nothing but increase gov’t power, while doing nothing to actually protect the consumer. I would go into more detail if I had time. But realize that the idea of the “robber barons” is just a myth.

  75. Neil
    July 29, 2010 at 8:28 pm #

    Robber barons a myth? I dont think so. Wealth was and still is concentrated in very few hands. The way they did it was by using their money, government and laws to setup their monopolies. They force out competitors in the free market. “Competition is a sin.” John D. Rockefeller. The Federal Reserve was created by the robber baron class to protected their wealth and POWER for their future generations. To no longer have to perform at dominating a industry illegally while still providing a product or service to the public. Now they can sit back and control are monetary system which encompasses all business sectors, banking, laws, presidents, congress, senate, military the list goes on and on.

    By the sweat of your brow shall you eat bread.

  76. Felipe
    July 30, 2010 at 7:05 am #

    There was nothing inherently wrong in Adam and Eve’s transgression neither. Should God have granted amnesty to Adam and Eve and allowed them to stay in the garden of Eden since their transgression wasn’t necessary evil in nature, only braking a law?

    Another point is that we don’t know that Pres. Monson sent E’ Jensen to say that we needed compassion. He reiterated in his remarks that the Church had no official position and that he was speaking for himself. The Church also sent a representative as an observer only to the inter-faith panel on immigration last week. The letter sent from the first Presidency before primary season said that both parties had good policies and invited members to participate actively. So, despite of what E’Jensen said, it is possible to hold the conservative view and not risk your salvation.

    I understand that the problem is big, and the vast majority of people come here looking for a chance to make money. The truth is that many husbands come here without their families just to work and send money back home. Wouldn’t it be more compassionate to send them home so they can be with their families and raise their children? The gov. of Mexico doesn’t care about the rights of their citizens that are here illegally. They just don’t want to loose the billions that fathers and sons send back to Mexico every week to their families. That is a huge chunk of their economy.

    If we want to open the borders for poor people to come here and enjoy the blessings, then we have to figure out a fair way. It is unfair that only some Mexicans can make it. They have an unfair advantage because their country is right south from the US. Also, people from norther states in Mexico have more chances. How about the poor peasants in Asia, people from Africa and other countries in Latin America? Should they have an opportunity to pursue a better life in the United States. If we are going to have open borders, it is not fair that only Mexicans can come. People from all over the world should be able to afford a trip to the US. It is only fair.

  77. Brandon
    July 31, 2010 at 3:40 pm #

    @Niel: I don’t disagree at all with your assessment of those early industrialists, in terms of their going to the gov’t to get laws passed to restrict new competition and protect their profits. However, what I was referring to was the fact that despite claims by the gov’t anti-trusters that companies like Standard Oil hurt the consumer, the price of oil continually decreased under Rockefeller.

    @Felipe:
    Your analogy is false, for the simple reason that one involves God’s law (always just by definition) and man’s law (not always just). Also, just because “both parties have good policies” in a general sense, it does not follow that a specific policy of either party is “good,” and in many cases, I would say that NEITHER of the two major parties are correct in their policy proposals.

  78. Connor
    August 16, 2010 at 10:49 am #

    In further support of states retaining and the power to control immigration, having only delegated the power of naturalization to Congress, Tucker’s Blackstone notes the following:

    “…The common law has affixed such distinct and appropriate ideas to the terms denization, and naturalization, that they can not be confounded together, or mistaken for each other in any legal transaction whatever. They are so absolutely distinct in their natures, that in England the rights they convey, can not both b…e given by the same power; the king can make denizens, by his grant, or letters patent, but nothing but an act of parliament can make a naturalized subject. This was the legal state of this subject in Virginia, when the federal constitution was adopted; it declares that congress shalt have power to establish an uniform rule of naturalization; throughout the United States; but it also further declares, that the powers not delegated by the constitution to the U. States, nor prohibited by it to the states, are reserved to the states, respectively, or to the people. The power of naturalization, and not that of denization, being delegated to congress, and the power of denization not being prohibited to the states by the constitution, that power ought not to be considered as given to congress, but, on the contrary, as being reserved to the states…”

  79. Greg
    August 18, 2010 at 4:58 pm #

    The reference to Helaman 6 at the beginning of the article is certainly an intriguing proposition concerning immigration. Above it is stated that:

    The first product of peace mentioned is open migration between the inhabitants of each distinct civilization. Free intercourse and commerce have special mention, and are corollaries to the unrestricted ability to travel and reside where one pleases. Second, the record notes that this exchange between the individuals of each group yielded increased prosperity for all involved. They became “exceedingly rich” and had “an exceeding plenty”. . . the principle contained in this ideal snapshot of liberty and prosperity should be sincerely scrutinized in order to find out how we can apply it to ourselves and produce similar results.

    The “peace” mentioned in the scripture above seems to be the result of the experience cited near the end of Helaman 5 (see especially verse 47).

    Just a thought…

  80. Velska
    October 3, 2010 at 12:40 pm #

    I think this was a very good write-up. My hat’s off to you, Connor, for being the one conservative commentator I have run into who dares to be honest to stated principles.

    Naysayers notwithstanding, Connor you have assembled an excellent piece of research and made the correct conclusions from an economical point of view.

    Furthermore, I agree that most immigrants likely come to the country much more appreciative of the democratic freedoms it provides than most citizens.

    Why are people harping on the “security” thing when the evidence clearly shows that if someone should be excluded based on birthplace it should be US-born who are kept a closer watch on than the immigrants — again, the few drug gangs notwithstanding.

    And, one might add, that it is precisely the willingness of American citizens to break the laws of their own country and buy illegal drugs that give those few drug gangs such a ready access to the country.

    However you try to cut this issue, Nation-State borders and border controls have never done anything but harm productivity and effective division of labor, and as a consequence of that, has created a wildly distorted distribution of wealth.

    The alternatives before el Norte (which in this case can be a stand-in for Europe as well as Northern America) are: to redivide labor (end unfair subsidies) and redistribute wealth (allow free trade and labor movement) voluntarily — or have them done violently. I’m not threatening anyone, that is, that is just the result of economics and demographics.

    And why, pray tell, would the immigrants somehow “dilute” American culture when we know they usually study and work more diligently than the “natural borns”.

    The only actual danger is that if they’re driven too far from the native citizens they may gather into blocks of mono-cultural (non-English-speaking) ghettoes and build a culture of their own, much like the Muslims in some European countries have done. But that has been mainly because the European “master race” has just wanted the cheap labor of the parents, forgetting that the situation of the children may hugely disillusion them.

    As it is, in Germany for one, one of Middle-Eastern extraction has almost no way of achieving a college degree without superhuman effort.

  81. Heather
    November 12, 2010 at 9:06 am #

    What about entitlements? Do illegal immigrants not find ways to get on welfare, also use taxpayer funds for healthcare, education, etc.? Would amnesty allow a significant higher number of these immigrants the opportunity to participate in the entitlement system we have in place and what would that do to our econonmy? I believe it would. Many of them will qualify for govt programs and I believe will take full advantage of them all. I am not sure if you addressed this in your essay as I mostly skimmed through each section, reading the main ideas. I would love to have a discussion on how entitlements play a role in amnesty.
    Thanks and great job! I am once again in awe of your ability to cleary articulate and logically persuade in this essay.

  82. Riley
    June 13, 2011 at 10:53 am #

    Heather,

    Of course entitilements play a role and I believe that needs to be addressed before we can begin to evaluate with a clear mind the immigration issue. I do like what Connor has written here, but to debate this issue while presently living in a full-on welfare state is like debating how to create planets before Judgment Day…pointless.

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