[Radar]

SUPREME COURT RULINGS

Today’s Supreme Court would never admit that Congress lacks the power to restrict peaceful immigration. But then, the modern Supreme Court finds it excruciatingly difficult to deny the Feds any powers at all.

The U.S. Supreme Court has never found any grant of authority to restrict immigration within the terms of the constitution. They looked, but couldn't find it. While the modern court would never admit that no Constitutional provision authorizes Congress to restrict peaceful immigration, all of the modern Court’s decisions rest upon a few fragile precedents from the end of the nineteenth century. These precedents were incorrect when decided, and time has not corrected their defects. In the 1880's and 1890's, a series of decisions came down from the Supremes, holding that Congress did indeed have the power to restrict immigration. What is remarkable about those decisions, however, is that they assume what they set out to prove. They were incorrectly decided because they were based upon incorrect assumptions about the nature of the Federal Union. Their faults are explained below.

The Supreme Court first took up the question of Congressional power to restrict immigration in PING v. U.S., 9 S. Ct. 623, 130 U.S. 581 (1889). In that case, the appellant had already once entered the U.S., had lived here a dozen years, had left, and come back again. His attorney argued that since he had first come here under protection of a treaty, he had a vested right to return. However, in making his argument to the court, the attorney gave away the farm to save the barn. For strategic reasons, attorneys will try to save their clients by arguing that they present a special case, and an exception to a general rule. They then often concede the general rule, when it is not necessary to do so. This often results in the erosion of rights and liberties, and this case is a good example. In Ping, the first case argued before the Supreme Court on the Federal power to restrict immigration, the appellant's attorney conceded that power in Congress. The Supreme Court was only too happy to accept that concession on behalf of Congress, and so, 100 years after the ratification of the Constitution, Congress acquired a power not in the constitution, by judicial fiat. The Ping decision became ensconced in the law, and was cited as precedent by the next and all subsequent immigration cases. The Ping Court held as follows: "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."

There it is. That’s the whole of the “argument.” A glance would tell a reasonable person that it is not an argument at all, but a mere assertion. To the extent that it is cited as a “proof” of the existence of Congressional power to restrict immigration, it must be admitted that it is not a proof at all, because it assumes what is to be proved. Apparently the Court felt comfortable with the unadorned, unbuttressed assertion, since appellant’s counsel conceded it.

Several things must be noted about the Supreme Court's holding. First of all, no specific provision of the Constitution is cited as the source of the Federal authority to restrict immigration. Second, the Supreme Court alleges that the source of that authority lies in the "sovereignty" of the Federal government.

Thus, this holding depends upon the notion that the Federal Government is Sovereign. However, as the Founders originally understood the Constitution, it did not create a sovereign Federal Government. The FedGov was merely the agent of the States, which retained their sovereignty, except where limited by the contract known as the Constitution. There is a voluminous literature, in Elliot’s debates, Benton’s Debates, the Annals of Congress, and in the works of various commentators during the Antebellum era, all demonstrating that the Federal Government was the result of a compact between the states, but the best summary of this position can be found in the Virginia Resolutions, drafted by Madison and passed by the Virginia General Assembly in the same year. It contained interesting observations upon the unconstitutionality of the Alien and Sedition Acts:

“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that implications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of power, in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy. That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the "Alien and Sedition Acts" passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government; as well as the particular organization, and positive provisions of the federal constitution; and the other of which acts, exercises in like manner, a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto; a power, which more than any other, ought to produce universal alarm, because it is leveled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.”

The Kentucky Resolutions of 1798, drafted by Thomas Jefferson, and passed by the legislature of that state, also expressed the same constitutional theory, and also criticized the Alien and Sedition Acts, as unconstitutional:

“RESOLVED, . . . . That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact. . . .”

(To be continued)