The Constitutional Solution to Immigration
In July of 2015, Kate Steinle, a United States citizen, was shot and mortally wounded by a man who was in this country illegally, with a firearm stolen from a government agent, who, it should be mentioned, was employed by a federal agency that has no authority to exist under the Constitution.
Commentary regarding this tragedy centers on the status of San Francisco as a sanctuary city and the violation of federal immigration laws, both by the defendant, Jose Zarate, and the city. Zarate was awaiting his sixth deportation and was released by federal immigration officials to the Sheriff’s Department in San Francisco, who subsequently released him pursuant to their policies as a sanctuary city.
But absent from the discussion has been the issue of who has the authority to create and enforce immigration policies in the first place.
Article I, section 8, clause 4 of the United States Constitution empowers Congress to “establish an uniform Rule of Naturalization.” Naturalization, however, means who may become a United States citizen, not who may enter into the nation’s borders, which is immigration.
The use of the term “Nation” is problematic and is the heart of the issue when one considers the history of the founding of our current system of government.
The Constitution was submitted to thirteen states for ratification. The states were sovereign and independent, and through a compact, formed a Union which was voluntary in nature – sentiments expressed in the Declaration of Independence. Accordingly, they retained the right to determine who they would allow to cross their borders and live within their societies. Because this right was never delegated to the general government by the states, the right to decide immigration policies rested with the states, a fact reiterated by the Tenth Amendment.
James Madison initially proposed a strong central government. But after the Virginia Plan was rejected outright in Philadelphia, he conceded that the new government was federal, and not national in nature.
In Federalist #39, Madison wrote:
“It appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act.”
What does this mean in terms of immigration?
It means that the authority to determine citizenship in the Union as a whole rests with the general government, but the power to control immigration remains with the states. But today, the federal nature of the American system of government has been dismantled, and the states are now secondary to the whole, the complete opposite of the government that was consented to.
So, how exactly has immigration become a national issue?
Much like any other unconstitutional expansion of the general government, it has been through a deliberate misinterpretation of the Constitution. As expected, such misinterpretations consistently result in the expansion of the scope and power of the national government.
Article I, section 9 reads, in relevant part, “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…”
This section was added to gain the cooperation of slaveholders in the ratification process and was intended to merely restrict the general government from banning the importation of slaves until the year 1808; in no way can it be implied that Congress had the authority to regulate immigration after that year. As stated, the powers delegated to Congress were enumerated in Article I, section 8. Naturalization, not immigration is listed.
Clearly, sovereign entities (states) would be reluctant to surrender their authority to determine who can enter and live within their borders; local policy and social decision-making authority were to rest with the states. That is the very essence of the federal system that was consented to. With a national system, such decisions affecting 320 million people are made decided by a select few, sometimes even as few as five. The American War for Independence was fought to preserve a system of consent by the governed, where individuals were represented by local government bodies.
When we allow ourselves to live under a system of national rule, every issue becomes a point of contention, and “inconsistent state rulings” serve to justify a decree by the Supreme Court, often in matters it has no authority under the Constitution to hear in the first place.
To complicate matters, the government allows those who cross borders illegally to collect benefits, so there is a financial reward available to these people for breaking the laws. Should a state decide to open its borders, it should be able to do so, under the Constitution as ratified. A neighboring state could refuse to provide benefits, free education, housing, medical care to such individuals, forcing the host state to bear the financial burden of its policy. Laws passed in California and Texas this year reveal how these differing approaches to immigration work together.
Unfortunately, the national financial lure allows illegal immigration to all of the states, regardless of the preferences of the citizens of the different states.
California has elected to become a sanctuary state, and it should bear the responsibility for the burdens this policy creates. Thanks to nationalism and the fact that states are merely a subsidiary of the whole, those who enter states with lax borders and sanctuary policies, may now burden other states, as they are free to travel and collect benefits across the Union. What this means is one state’s residents must pay the price for the policy-making decisions of another. The founders and ratifiers took painstaking measures to ensure this would not happen, and to accept that federal domination over the states when it comes to immigration laws is to reject the notion that the states are capable of self-governance. If we reject that, then we have surrendered our Revolutionary legacy.
