Constitution & Law

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Immigration, the Constitution, and Liberty

Immigration is one of those intractable wedge issues. It is, for the most part, a problem created by government meddling — and therefore any “solution” implemented by the government is more likely to aggravate the situation than improve it.

First, let me state that I believe the federal government to have no authority over immigration except to create uniform laws of naturalization. I readily concede that this view is far outside the political mainstream, but it is consistent with the text and original intent of the Constitution.

Article 1, section 8, clause 4 of the United States Constitution empowers Congress to regulate naturalization, which is the process of granting citizenship to a foreign-born person. But the clause is silent on immigration, which relates to residency, not citizenship.

Today “immigration” and “naturalization” are now seen as being closely related, but the two words had separate and distinct meanings when the Constitution was ratified. In the 18th century, the definition of naturalization was something like “the act of investing aliens with the privileges of native subjects,” while immigration meant simply moving from one place to another.

And we shouldn’t forget that among the many issues provoking America’s secession from the British Empire was the attempt by King George III to restrict westward immigration. Americans in the 18th century wanted more land and the freedom to move about, and they believed this particular pursuit of happiness was being stymied by a remote and arrogant central government.Sound familiar?

Given that the Constitution only grants the federal government specific and enumerated powers, and conspicuously lacking among those powers is the authority to regulate immigration, it stands to reason that such powers are retained by the sovereign states. This was supposedly clarified by the Tenth Amendment, which Thomas Jefferson considered to be “the foundation of the Constitution.” That amendment reads,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

And as Jefferson explained in the Kentucky Resolution of 1798,

Alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens.

So a proper interpretation of the Constitution puts the locus of the immigration debate at the state level. Now, how the states decide to resolve disputes relating to immigration is another question entirely, but Washington should really have no say in the matter. Nevertheless, the federal government has sought to regulate immigration since 1890, and the passage of time has legitimized this usurpation in the minds of most Americans.

The U.S. Supreme Court, citing the supremacy clause of the Constitution, has held that

the regulation of aliens is so intimately blended and intertwined with responsibilities of the national government that where it acts, and the state also acts on the same subject, “the act of Congress or treaty is supreme; and the law of the state, though enacted in the exercise of powers not controverted, must yield to it.” And where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation … states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.

But the supremacy clause only applies to those powers pursuant to the Constitution. That is, it applies only to Congress’s enumerated powers and should not be construed as a grant of general power, which would negate the very purpose of writing a constitution. And, as pointed out above, Congress was given authority to regulate naturalization, not immigration.

Furthermore, the Constitution did not establish a nation-state. What it did establish was a confederation of sovereign states that had agreed to delegate some of their powers to a general government, primarily for purposes of mutual defense and the creation of a common market. The consolidation of the United States of America into a nation-state in the 19th century had more to do with the ambitions of northern politicians than with any established constitutional or legal process. That indeed was the whole point of the great unpleasantness commonly referred to as the American Civil War.

Those demanding that the federal government “secure the borders” are usually conservative types who claim to favor a strict constructionist view of the Constitution. Yet by advocating a federal crackdown on illegal immigration, they are supporting policies requiring a very broad interpretation of federal power. When it comes to immigration, they spurn Thomas Jefferson and embrace Alexander Hamilton.

They are also supporting policies that are turning the country into a veritable police state. For instance, take the recent immigration-reform bill co-sponsored by Senators John McCain and Charles Schumer. The bipartisan plan calls for a massive increase in drones flying over U.S. territory, spying on U.S. citizens along the border — and presumably within the 100-mile “border zone” over which the Department of Homeland Security (DHS) asserts jurisdiction. These areas have been called “Constitution-free zones” because border-patrol agents operating within them are exempt from the Fourth Amendment’s prohibition of unreasonable searches and seizures. I might add that well over 50 percent of the U.S. population lives within a “border zone,” which the DHS defines by proximity to any national barrier, political or physical, including bodies of water.

How long will it be before the drones used to police the borders are conscripted into other law-enforcement functions such as drug interdiction? Will these drones be armed, and if so, will those operating them be given the authority to fire on suspected drug smugglers? After all, the War on Drugs is a war, and you cannot afford to observe the niceties of due process in wartime, or so the argument goes.

The McCain-Schumer plan also calls for the creation of what would be in effect a national ID card. Dubbed E-Verify, the program would likely require Americans to have in their possession a biometric card verifying their employment status. (You gotta keep employers from hiring illegals, lest the terrorists win.) The program would be administered by DHS, which would maintain a comprehensive database on all Americans, and those operating it would decide whether one would be permitted to work. Comprehensive database? Permitted to work? So much for the right to privacy and the pursuit of happiness.

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Tim Kelly

About Tim Kelly

Tim Kelly is graduate of George Mason University. He is a political cartoonist and policy advisor for the Future of Freedom Foundation; he is also involved with Radio America. Tim is married and has been blessed with five children.

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