The Federal Government Has No Immigration Powers

[Radar]

While flagging off my stalker tonight, I came across a great article. I wish I knew the author so I could give him or her the credit they deserve. Like my posts, this author states the truth, and then backs it up with facts, quotes from our founders, well-reasoned and articulate arguments with solid logic, etc.

I hope you enjoy it as much as I did.

[Radar]

The other day, I did a bit of reading. It was getting lonely out there on the Texas border patrol. It had been days since I had chased or shot at anyone. After finishing some road kill, I decided to do a bit of reading before turning in. Since the primary, or secondary, politicians had just been in town, there was a copy of the Constitution, trampled and tattered, lying on the ground. I picked it up and perused it, looking for that part where Congress is authorized to restrict immigration. Much to my surprise, I could not find any such provision. I came to some radical conclusions. Here is what I learned.

Immigration is not a federal matter. It was left to the individual States to regulate.

The Constitution contains no provision authorizing the Federal Government to close the borders to immigration. The tenth amendment provides that the powers not delegated to the Federal Government are reserved to the States or to the People, respectively. Thus, the Federal Government has no power to restrict immigration. The Federal laws restricting immigration are unconstitutional.

THE POWER TO RESTRICT IMMIGRATION IS NOT TO BE FOUND WITHIN THE CONSTITUTION

Try as one might, one will not find any provision in the constitution that authorizes the Feds to close the borders. We must abjure penumbras. We must demand the words that confer upon the government the power to put up a Berlin wall. We must keep the Tenth amendment in mind. The powers not delegated to the Feds are reserved to the states or to the people, respectively. "[A]lien 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." Thomas Jefferson, Draft, Kentucky resolutions, Section 4, 1798. (See comment 135, above, in this thread).

Now to the specific powers granted.

The closest one may come is the harmless congressional power "To establish an uniform Rule of Naturalization" Section 8, Clause 4, US Const. This argument works only if one confuses naturalization with immigration. The power to set standards for naturalization does not include the power to shut down the borders, because the meaning of the term "naturalization" does not include the concept of immigration. The latter refers to the act of entering a new country for the purpose of permanently settling. "Naturalization" refers to the process of conferring the rights of citizenship upon aliens. Immigration can occur without any grant of citizenship. Citizenship may be granted or withheld without affecting immigration, and without resorting to deportation. In other words, it is not necessary to deport those who fail a citizenship test! When the Constitution was ratified, citizenship was not so widespread as it is now. If the FedGov had then deported all those aliens who failed to attain citizenship, America's population would have become depleted.

The Congressional power to establish an uniform rule of Naturalization does not now, and did not then, embrace the power to deport, because the definition of Naturalization does not now, and did not then, include the idea of deportation. The Tenth Amendment declares that the powers not delegated to the Federal Government are reserved to the States or to the people, respectively. "Naturalization" and "immigration" are not the same thing, and they never have been. One may immigrate without becoming naturalized. To immigrate means to enter a country to take up permanent residence. To naturalize means to confer rights of citizenship upon an alien. A clause that confers powers to prescribe rules of naturalization but never mentions immigration cannot be construed to include powers over immigration, without doing violence to the Tenth Amendment.

The power to regulate commerce between nations does not include the power to prohibit either commerce or immigration. All of the early treatises on the Constitutional law recognize the limits of the powers conferred by the Commerce Clause. However, the commerce clause has lately become the most abused provision in the Constitution. It was intended only to provide Congress with the power to prevent the States from erecting trade barriers, so as create a free trade zone, but since 1937, the Supreme Court has twisted its meaning, to authorize Congressional legislation on any activity which might affect interstate commerce.

INVASION

It is sometimes suggested that the power to restrict immigration is to be found within the Congressional power to call out the militia to repel invasions. The power to repel invasions, or armed, hostile entries, does not include the power to prohibit peaceful immigration, because the meaning of the term "invasion" does not include peaceful immigration. However, since when is peaceful immigration to be equated with an invasion? Mexicans don't enter as enemies, but as job-seekers. Wealth, land, and natural resources won't make us any wealthier. Labor will. Are you willing to do the work that they are?

It is not proper to ask the question, what is the meaning of the word, “invasion”? That question could be answered with a definition from the internet. If only the founders had had the internet. The proper question, to determine the original understanding of the Constitution, is what was the meaning of that term, at the time the Constitution was ratified? By asking the former question, one camps out with those who advocate a “living constitution,” which changes its meaning over time, whenever judges wish for such a change, without formal amendment, under Art. V. This is the road to despotism.

He who asks the proper question finds himself in need of an eighteenth century dictionary. They are not hard to find. Giles Jacob’s Law Dictionary (1797) defines “invasion” as an attack by foreign enemies, at war. The Oxford English Dictionary cites numerous such uses of the term, stretching back to 1494.

Another clue to the meaning of “invasion” lies in Art. 1 section 10, which forbids the States from conducting wars, “unless actually invaded, or in such imminent danger as will not admit of delay.” Here we find the familiar distinction between ordinary defensive war and pre-emptive war. The important thing to note is that, at least in this context, when the Constitution refers to “invasion,” it contemplates war. Even Art. 1 Section 8 Clause 15 authorizes Congress to call out the militia to repel invasion. Does anyone really think the Founders, anxious to encourage immigration, would ever have thought of authorizing the Feds to make war upon peaceful immigrants?


(To be continued)

[Radar]

THE ELASTIC CLAUSE

It is sometimes argued that the power to restrict immigration may be implied from other powers, through the use of that clause which confers upon Congress the power to make all laws necessary and proper for caring into effect the enumerated powers. However, the necessary and proper clause does not expand the scope of the powers, as the Federalists repeatedly said, in response to complaints from the Anti-federalist s. The best sources on these issues are Elliot's Debates, The Anti-federalist Papers, and the Federalist Papers. They are all available in bookstores and on ABEBooks, on line, for cheap. As an example, here are the words of Spencer Roane, a Virginian, writing in 1819:

“I come now, to ascertain, more particularly, the meaning of the terms “necessary and proper,” used in the constitution. I have, before me, Johnson’s Dictionary, which is believed to be the best in the English language. By it I find that “necessary” means “needful,” “indispensably requisite:” and that “proper” means “peculiar,” “not common or belonging to more.” — To justify a measure under the constitution it must therefore, be either “necessary and proper,” or which is the same thing “indispensably requisite” and “peculiar” to the execution of a given power.” [Spencer Roane, writing as Hampden, 15 June 1819, letter to the editor of the Richmond Enquirer, reprinted in John Marshall’s Defense of McCulloch v. Maryland, pg. 133 (Stanford University Press: Stanford, 1969)].

Since it is not necessary to authorize the FedGov to restrict immigration of, or to deport, aliens who fail to qualify for Naturalization, the Necessary and Proper clause does not somehow combine with the Naturalization clause to produce a power to deport or to restrict immigration.

In general, the Necessary and Proper clause cannot be used to increase the powers of the FedGov. During the ratification debates (which you can access online now, in Elliot's Debates, at http://memory.loc.gov/ammem/amlaw/lawhome.html), the Anti-federalists repeatedly raised the specter of the future use of the Necessary and Proper Clause to increase the powers of the FedGov beyond those constitutionally delegated, and at every turn, the Federalists assured them that no such construction would be used. It was on that promise, and others, that the Constitution was ratified. Less than a decade after ratification, of course, Hamilton and his Federalists began a legislative program (including, for example, the National Bank and the Alien and Sedition Acts) that exceeded the powers of Congress, and sometimes cited the Necessary and Proper Clause as a justification for the assumption of new powers. In Congressional Debates, which you can read in the Annals of Congress, at the same website, those who eventually became aligned with the Jeffersonian Republicans reproached the Federalists for their lack of good faith, and reaffirmed the Founding principles of limited government. One can see an example of the Republican side of the argument in Jefferson's draft of the 1798 Kentucky Resolution:

"That the construction applied by the General Government (as is evidenced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power "to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," and "to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof," goes to the destruction of all limits prescribed to their power by the Constitution: that words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument: . . . ."

Madison's 1798 Virginia Resolution also made the same complaint:

“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 . . . . "


IMPLIED POWERS

It is sometimes asserted that the Constitution does confer upon the Federal government the power to restrict immigration, because that power is implied, either by the terms of the Constitution, or by other ideas somehow inherent in the idea of a government.

This must be recognized as a Hamiltonian argument, resting upon the notion of the implied powers doctrine, which holds that specific powers can be deduced from vague generalities such as the "authority to maintain a nation." The tenth amendment is a rule of construction (ignored for the last seventy years by Congress and the Supremes, of course) that instructs the reader how to interpret the Constitution. The powers not delegated to the Feds are reserved to the States and the people.

Here are the words of Governor Randolph, a proponent of the Constitution, at the Virginia Ratifying Convention: “Let me say that, in my opinion, the adversaries of the Constitution wander equally from the true meaning .... in the general Constitution, its powers are enumerated. Is it not, then, fairly deducible, that it has no power but what is expressly given it? — for if its powers were to be general, an enumeration would be needless.” Elliot’s debates, Vol III, @464-65.

It is sometimes argued that the entire constitution could not be carried into effect, without implying powers, because the words of the Constitution are not broad enough. For example, it has been argued that even though Congress has been granted the power to coin money, that power does not include the power to imprint on them any design, since, its is argued, the meaning of the term “coin” excludes a “design”. To the contrary, coins have always been struck with designs that identify their weight or value and their issuing authority. Even the earliest coins, from seventh century B.C. Lydia, bore such stamps. The English word “coin” comes from a French word, “coin,” which meant “wedge”. The die used to strike coins once was shaped like a wedge. For centuries, the English verb “coin” has meant to make money by stamping pieces of metal of specific weight or value with marks or symbols. The O.E.D contains, as examples of this use of the word “coin”, quotations from English literature as early as 1330. Thus, the term "coin" includes the concept of a design stamped upon it, and it was not necessary to include "design" as a separate power of Congress, as it was already subsumed by the power "to coin." No one would dispute, however, that the meaning of the term “coin” included the idea of paper money. This is an example of how the meanings of the words in the Constitution, if given their ascertainable original values, confer enough power upon the FedGov to carry out its Constitutional duties, but no more.

(To be continued)

[Radar]

POLICE POWERS

It is sometimes argued that the Alleged Federal power to restrict immigration comes from the police powers that all governments supposedly have. Yet the Federal Government was not by the Constitution endowed with general police powers.

While the State governments possess general police powers, the Federal government does not, at least not according to the original meaning of the pertinent Constitutional provisions. The Federal government is a limited government, with enumerated powers. The State governments are plenary governments, whose powers are limited only by the Constitution. An important watershed between the Federal and State powers lies roughly along the fault line between State police powers and the Federal power to regulate commerce among the states. That which belongs to commerce among the states is within the jurisdiction of the United States, but that which does not belong to commerce is within the jurisdiction of the police power of the State. Gibbons v. Ogden, 9 Wheat. 1, 189, 210; Brown v. Maryland, 12 Wheat. 419, 448; The License Cases, 5 How. 504, 599; Mobile v. Kimball, 102 U.S. 691; Bowman v. Chicago & N.W. Railway, 125 U.S. 465; Leisy v. Hardin, 135 U.S. 100; In re Rahrer, 140 U.S. 545, 555.

Take a close look at Article 1 Section 8. Note that the Feds are given specific powers to define and punish crimes in only two clauses, namely:

Clause 6: "To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;"

Clause 10: "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations"

Remember that the Tenth Amendment reserves to the States and to the People those powers not delegated to the Feds. Thus, since the Feds have not been delegated the power to punish any crimes other than those listed in Art. 1 Section 8, the Constitution does not confer general police powers upon the Federal government.

One might argue that the general police power arises from the specific powers that are granted, plus the "necessary and proper" clause, Clause 18, which grants Congress the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." One would be wrong. Take a closer look at those clauses, quoted above, that authorize the Feds to punish crimes. Clause 6 authorizes Federal punishments for counterfeiting U.S. coins. Congress is also authorized to coin money, in Clause 5. If the "necessary and proper" clause allowed the Feds to derive criminal jurisdiction from other defined powers, then the counterfeiting clause would have been unnecessary. Likewise, if the Feds could, from the power to " regulate Commerce with foreign Nations", in Clause 3, derive the power to punish felonies committed on the high seas, then Clause 10 would have been unnecessary. Madison's notes from the Federal Constitutional Convention reveal that the Framers took great care in defining the powers of the Federal government, and excluded many proposed powers that have since been assumed by Congress, in blatant disregard for the limits set in the Constitution (such as aid to education, social security, Medicaid, etc.). The pages of Eliot's debates, containing the records of the ratifying conventions, contain many assurances from the Federalists to the complaining Anti-federalists that the "necessary and proper" clause would not be used to expand Federal powers beyond what were enumerated. How then, you may ask, did the Framers and Ratifiers expect the new Federal Government to carry out its powers, without the power to criminalize defiance? For example, how were the Feds supposed to regulate commerce, without the ability to punish transgressions of the Congressional laws laid down in that field? The answer is deceptively simple. In our own times, when Congress assumes the right to criminalize nearly every form of misconduct, we have forgotten that civil penalties can be highly effective. The Swiss, for example, traditionally have punished tax evasion with civil fines and forfeitures. In the U.S., we have added unnecessary criminal penalties to a civil fine and forfeiture scheme that would have sufficed without those nasty criminal penalties.

How, then, did Congress come to assume the power to criminalize everything we do? It is a long, sordid story. Here are a few highlights.

The growth of the Federal Government in the second half of the twentieth century, and the growth of Federal criminal law, during the same period, can be blamed squarely upon one source: the deliberate, fraudulent misconstruction of the Commerce Clause (Clause 3, of Article 1, Section 8 ).

Until 1937, The Supreme Court held fast to two bedrock principles of Commerce Clause law: the power to regulate commerce (trade) did not carry with it the power to regulate productive activities (such as manufacturing); and the power to regulate commerce among the states (interstate commerce) did not carry with it the power to regulate commerce within the states (intrastate commerce). The power to regulate intrastate commerce, and the power to regulate productive activities, were routinely held to lie within the states' police powers.

The issue came to the fore when, in 1887, Congress enacted the Interstate Commerce Act, and, in 1890, Congress enacted the Sherman Antitrust Act. . When cases involving these laws first reached the Supreme Court, it reaffirmed the doctrine, from older Commerce Clause cases, that Congress could not regulate activities such as "production," "manufacturing," and "mining." See, e.g., United States v. E. C. Knight Co., 156 U. S. 1, 12 (1895) ("Commerce succeeds to manufacture, and is not part of it"); Carter v. Carter Coal Co., 298 U. S. 238, 304 (1936) ("Mining brings the subject matter of commerce into existence. Commerce disposes of it"). In A. L. A. Schecter Poultry Corp. v. United States, 295 U. S. 495, 550 (1935), the Supreme Court struck down regulations that fixed the hours and wages of individuals employed by an intrastate business, because the regulated activity related to interstate commerce only indirectly. The Court characterized this distinction between direct and indirect effects of intrastate transactions upon interstate commerce as "a fundamental one, essential to the maintenance of our constitutional system." Id., at 548. Activities that affected interstate commerce directly were within Congressional power; but activities that indirectly affected interstate commerce were beyond the powers of Congress. Id., at 546. Otherwise, the Supreme Court recognized, "there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government." Id., at 548. Two years later, in the watershed case of NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937), the Court, threatened by Roosevelt with packing and salary reductions (!), abandoned the distinction between "direct" and "indirect" effects on interstate commerce, and upheld the National Labor Relations Act against a Commerce Clause challenge. Id., at 36-38 The Court held that intrastate activities that "have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions" are within Congress' power to regulate. Id., at 37. In United States v. Darby, 312 U. S. 100 (1941), the Supreme Court upheld the Fair Labor Standards Act, and came close to demolishing the distinction between Federal powers and State police powers, when it stated: "The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce." Id., at 118. In United States v. Wrightwood Dairy Co., 315 U. S. 110, 119 (1942), the Supreme Court held that the commerce power "extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power". Thus, out of whole cloth, the Supreme Court invented a "substantial effects" test, which left the Feds with unbridled discretion in the exercise of powers never granted by the Constitution. This process reached its absurd conclusion in the case of Wickard v. Filburn, where the Court upheld the application of amendments to the Agricultural Adjustment Act of 1938 to the production and at-home consumption of home-grown wheat. 317 U. S., at 128-129. The Wickard Court explicitly rejected earlier distinctions between direct and indirect effects on interstate commerce, and stated: "[E]ven if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as `direct' or `indirect.' " Id., at 125. The Wickard court reasoned that the grain Wickard raised on his own land and fed to his own livestock could reduce the market price for grain, since every acre of wheat he grew and consumed represented another acre of wheat he did not need to buy on the open market! The Wickard Court emphasized that although Filburn's own contribution to the demand for wheat may have been trivial by itself, that was not "enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial." Id., at 127-128.


(To be continued)

[Radar]

Ever since, the Federal criminal code has grown with leaps and bounds, and every challenge to Federal criminal laws has been met with the argument that, under Darby and Wickard, the laws are authorized by the Commerce Clause. Drug laws, banking laws, and hazardous waste laws have all been justified in this way.

There you have it. That is the ugly story of how the Supreme Court fraudulently gave the Feds, their paymasters, police powers over you and me and the rest of us serfs.

(To be continued)

[Radar]

THE LEGISLATIVE HISTORY

Federal closing of borders is unconstitutional, according to the original meaning of the terms of the Constitution, because Congress has no power to close the borders against peaceful immigration. To illustrate the point that the early and original understanding of Congressional powers did not include that power, the earliest example of a congressional enactment assuming such power dates from 1862, a full 73 years after the Founding. So from the inception of the Republic, until the Civil War, Congress passed no law restricting immigration. This is strong evidence that it was originally understood that the Federal Government possessed no power to do so. Until the passage of an 1862 act to prohibit immigration of Chinese "Coolie" slave labor, Congress had passed only several acts to encourage (!) immigration. In the 38th through 43rd Congresses, dozens of bills were introduced to encourage (!) immigration. The index for the Statutes At Large from 1789 to 1845, reveals no entries for "immigration." From 1845 to 1875, the individual indices for each congress reveal no entries for "immigration" other than the1862 act mentioned above, and the 1875 Page Act, forbidding the immigration of slave labor from the Orient.

What can be learned from this legislative history? For the first 73 years of our nation's history, Congress passed no laws restricting immigration. For the first 73 years of this nation's existence, hostility towards immigration was a concept foreign to the Framers, as was the idea that the Constitution conferred upon the Feds the power to preclude peaceful immigration. In short, for the first 73 years of our nation's history, restrictions on Immigration were considered Un-American and unconstitutional.

It is sometimes asserted, incorrectly, that the Alien act and the Alien Enemies act, both of 1798, were, in fact, examples of a Congressional enactment exercising power over immigration. Such is not the case, however, because A) neither act contained any provision authorizing restrictions on immigration; and B) at the time of their passage, they were so widely recognized to be unconstitutional that they inspired the Revolution of 1800 that brought Jefferson to power. So, even assuming arguendo that the Alien Act and the Alien Enemies act assumed any power over immigration, the history of the widespread opposition to them, on the grounds that they were unconstitutional, serves rather to prove the point that the Founders did not, as a whole, believe that, under the Constitution, Congress was granted the power to restrict peaceful immigration.

Some have argued that the congress did pass a law restricting immigration, in the form of the Aliens Act of June 25, 1798 (1 Statutes-at-Large 570). However, the Aliens Act did not restrict the immigration of aliens. It merely authorized the deportation of aliens considered dangerous. Congress received many complaints from the States regarding the unconstitutionality of the act. The complaints included the argument that no provision of the Constitution authorized the deportation of Aliens. A committee of Congress filed a report, answering those objections. The committee argued that the Alien Act did not generally restrict immigration, and that there was a difference between a general restriction on immigration and the removal of dangerous aliens. 5th Congress, 3rd Session, Volume 1, pg.181-2. The distinction was important to Congress then, and it should be obvious to us now.

It is also important to note that, in the field of Constitutional history, it is very bad form to cite the Alien Act as an example of constitutional powers. Its passage was greeted with widespread disdain, as it was almost universally decried as unconstitutional, and it ignited a political firestorm that swept Jefferson into power. An American of 1800 would be shocked to hear anyone cite any of the Alien and Sedition Acts as precedent, for most Americans of that day considered those acts to be unconstitutional. The public outcry against the Alien and Sedition Acts was so great that they helped elect Thomas Jefferson to the presidency in 1800. Jefferson pardoned all those convicted under the Sedition Act, and Congress restored all fines paid with interest. The Alien Act itself expired after two years.

In addition to the Aliens Act of June 25, 1798 (1 Statutes-at- Large 570), the Alien Enemy Act of July 6, 1798 (1 Statutes-at-Large 577) gave the President the power to restrain or remove alien enemy males of fourteen years and upwards.

The full text of the Alien Enemy Act can be found at: http://earlyamerica.com/earlyamerica...on/a-text.html

The pertinent text of the Alien Act is as follows:

"whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies . . ."

Please not that, while the Act permits the FedGov to deport aliens affiliated with enemy governments, it does not mention any restrictions on immigration, general or otherwise. The act simply did not restrict the immigration of aliens. It merely authorized the deportation of aliens considered enemies. Congress received many complaints from the States regarding the unconstitutionality of the Alien and Sedition Acts. The complaints included the argument that no provision of the Constitution authorized the deportation of Aliens. A committee of Congress filed a report, answering those objections. The committee argued that the Alien Act did not generally restrict immigration, and that there was a difference between a general restriction on immigration and the removal of aliens. 5th Congress, 3rd Session, Volume 1, pg.181-2. The distinction was important to Congress then, and it should be obvious now.

The fact that the act authorized deportation of certain aliens can mislead the careless reader into believing that the act touched upon immigration. Since immigration laws also today concern deportation, isn’t the reader warranted in concluding that they are substantially the same? No. Banking laws and tax laws both deal with money. Does that mean that all banking laws are tax laws? A law prohibiting immigration concerns aliens, and a law authorizing deportation of dangerous aliens also concern aliens; yet that does not mean that both laws involve Congressional power over immigration. The INS may deport for offenses committed by an alien after immigration, or it can deport for illegal entry. Only the latter involves the power to restrict immigration.

(To be continued)

[Radar]

The Alien Act of 1798 does not prohibit entry into the U.S. by anyone, and hence does not involve any alleged Congressional power over immigration. It thus does not serve as a counterexample to the thesis that early Congresses passed no laws respecting immigration. The earliest such law we have found was in 1862, leaving a 73 year period during which the Founders and their successors gave no legislative sign that they believed the Constitution delegated to Congress the power to restrict immigration.

A glance at Madison's and Jefferson's Virginia and Kentucky Resolutions, quoted in Comment 135 above, will reveal that one reason opponents of the Alien and Sedition Acts believed them to be unconstitutional was that they allowed deportation for being labeled "dangerous" by the government, without a trial and the full panoply of rights guaranteed by the Bill of Rights.

But how can Madison and Jefferson have thought that the bill of rights applied to aliens? Because it does, according to the original understanding. Madison drafted the Bill of Rights, and he was careful to use the word "person", and not "citizen," throughout.

But is this line of reasoning vulnerable to the following reductio ad absurdum? Our analysis of the Alien Act logically entails the conclusion that INS deportations do not constitute restrictions on immigration. If such a conclusion would be absurd, then our analysis of the Alien Act must be false. However, the pertinent claim is a non-sequitur. In other words, it is not true that our analysis of the Alien Act logically entails the conclusion that INS deportations do not constitute restrictions on immigration. A simple exposition of the terms in question will reveal why this is so.

The Immigration and Naturalization Service may deport for at least two reasons: offenses committed by aliens after immigration has occurred, and illegal immigration. Only one of these powers involves restrictions on immigration. Immigration is the act of entering a new country with the intent of taking up permanent residence. The act of immigration is complete when the act of entry has been completed (as long as the requisite intent has accompanied the entry). Deportation for acts committed after entry does not restrict immigration, since it does not prevent the entry which is the essence of the act of immigration. Think of the difference between making a deposit and a withdrawal, in an ordinary bank account. A law which might prohibit an unauthorized withdrawal could be drafted without any reference to or restrictions upon the making of deposits.

In other words, some INS deportations are part of the Federal scheme to restrict immigration, and some are not. An example of the former would be a re- entry by a previously deported individual. An example of the latter would be a deportation of an alien for a drug conviction.

The Alien Act contained no terms by which entry was prohibited. It simply permitted the Feds to deport aliens which were determined to be "dangerous." Thus, the Alien Act attempted to confer upon the Feds powers which were similar to the modern INS power to deport for offenses committed by aliens after entry. Neither power involves the power to restrict immigration.

Since INS deportations fall into two classes, one involving power to restrict immigration, and one not involving that power, it does not logically follow that my analysis of the Alien Act logically entails the conclusion that all INS deportations do not constitute restrictions on immigration. To put it another way, while our analysis of the Alien Act does logically entail the conclusion that some INS deportations do not constitute restrictions on immigration, the same is not true with respect to all INS deportations. Yet this was the premise of the reductio ad absurdum. The attempt at a reductio has failed.

(To be continued)

[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)

[Radar]

Jefferson’s original draft of the Kentucky Resolutions was even more explicit: Draft of the Kentucky Resolutions October, 1798 1. Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes, — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress. 2. Resolved, That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offences against the law of nations, and no other crimes whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that "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," therefore the act of Congress, passed on the 14th day of July, 1798, and entitled "An Act in addition to the act entitled An Act for the punishment of certain crimes against the United States," as also the act passed by them on the __ day of June, 1798, entitled "An Act to punish frauds committed on the bank of the United States," (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory.

(To be continued)

[Radar]

4. Resolved, That 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. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that "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," the act of the Congress of the United States, passed on the __ day of July, 1798, entitled "An Act concerning aliens," which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force.

5. Resolved, That in addition to the general principle, as well as the express declaration, that powers not delegated are reserved, another and more special provision, inserted in the Constitution from abundant caution, has declared that "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;" that this commonwealth does admit the migration of alien friends, described as the subject of the said act concerning aliens: that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory: that to remove them when migrated, is equivalent to a prohibition of their migration, and is, therefore, contrary to the said provision of the Constitution, and void.

6. Resolved, That the imprisonment of a person under the protection of the laws of this commonwealth, on his failure to obey the simple order of the President to depart out of the United States, as is undertaken by said act entitled "An Act concerning aliens," is contrary to the Constitution, one amendment to which has provided that "no person shall be deprived of liberty without due process of law;" and that another having provided that "in all criminal prosecutions the accused shall enjoy the right to public trial by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense," the same act, undertaking to authorize the President to remove a person out of the United States, who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without hearing witnesses in his favor, without defense, without counsel, is contrary to the provision also of the Constitution, is therefore not law, but utterly void, and of no force: that transferring the power of judging any person, who is under the protection of the laws, from the courts to the President of the United States, as is undertaken by the same act concerning aliens, is against the article of the Constitution which provides that "the judicial power of the United States shall be vested in courts, the judges of which shall hold their offices during good behavior;" and that the said act is void for that reason also. And it is further to be noted, that this transfer of judiciary power is to that magistrate of the General Government who already possesses all the Executive, and a negative on all legislative powers.

7. Resolved, That the construction applied by the General Government (as is evidenced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power "to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," and "to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof," goes to the destruction of all limits prescribed to their power by the Constitution: that words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument: that the proceedings of the General Government under color of these articles, will be a fit and necessary subject of revisal and correction, at a time of greater tranquility, while those specified in the preceding resolutions call for immediate redress.

8th. Resolved,. . . . that it does also believe, that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these States; and that therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the General Government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co- States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified: that if the acts before specified should stand, these conclusions would flow from them; that the General Government may place any act they think proper on the list of crimes, and punish it themselves whether enumerated or not enumerated by the Constitution as cognizable by them: that they may transfer its cognizance to the President, or any other person, who may himself be the accuser, counsel, judge and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction: that a very numerous and valuable description of the inhabitants of these States being, by this precedent, reduced, as outlaws, to the absolute dominion of one man, and the barrier of the Constitution thus swept away from us all, no rampart now remains against the passions and the powers of a majority in Congress to protect from a like exportation, or other more grievous punishment, the minority of the same body, the legislatures, judges, governors, and counselors of the States, nor their other peaceable inhabitants, who may venture to reclaim the constitutional rights and liberties of the States and people, or who for other causes, good or bad, may be obnoxious to the views, or marked by the suspicions of the President, or be thought dangerous to his or their election, or other interests, public or personal: that the friendless alien has indeed been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather, has already followed, for already has a sedition act marked him as its prey: that these and successive acts of the same character, unless arrested at the threshold, necessarily drive these States into revolution and blood, and will furnish new calumnies against republican government, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism — free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go; and let the honest advocate of confidence read the alien and sedition acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits. Let him say what the government is, if it be not a tyranny, which the men of our choice have conferred on our President, and the President of our choice has assented to, and accepted over the friendly strangers to whom the mild spirit of our country and its laws have pledged hospitality and protection: that the men of our choice have more respected the bare suspicions of the President, than the solid right of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. . . . .”

[Radar]

Jefferson and Adams made it clear, in 1798, that the FedGov was the creature and the agent of the sovereign States, whose compact, the Constitution, did not make the FedGov a sovereign. Thus, any chain of reasoning built upon the idea that the FedGov was sovereign was a house of cards built upon a foundation of sand castles, to mix metaphors. This did not, however, prevent the Supreme Court from proceeding upon just such a faulty chain of reasoning.

The next immigration cases to come before the Supreme Court were EKIU v. U.S., 12 S. Ct. 336, 142 U.S. 651 (1892), and TING v. U.S., 13 S. Ct. 1016, 149 U.S. 698 (1893) In these opinions, the Supreme Court cited the earlier Ping decision as authority on the question: As the Ting court put it, "The general principles of public law which lie at the foundation of these cases are clearly established by previous judgments. of this court, and by the authorities therein referred to." This is a prime example of how courts genuflect before older precedents, without reexamining the grounds for those earlier decisions. This is especially problematic in constitutional law, where, if errors are allowed to creep in during early decisions, those errors shape later decisions in ways at variance with the original significance of the terms of the Constitution. In effect, the errors are allowed to amend the terms of the Constitution, without resort to the formal amendment process.

Why would courts slavishly adhere to erroneous precedents? Because that is the method of the Common Law, which the Atlantic states inherited from their colonial master’s legal system. In Britain, judges were allowed to develop commercial law in this way, building from precedent to precedent, using reason as their guide, and they found it to be a fairly stable system. Results in new cases followed precedents in a predictable fashion. When the law ventured into unknown territory, and it was impossible to answer the question, “what is the law,” or the question, “what was the law,” judges would ask “what must the law be, to be consistent with prior rulings?” American judges adopted these methods, and law schools taught these methods, and, gradually, these Common Law methods were imported into Constitutional law. The early Supreme Court did not use the methods of the Common Law. It correctly and merely asked, “what did the Constitution mean, at the time of Ratification?.” The question was usually answered with a long series of citations to the Annals of Congress, letters written by the Founders, papers written by Federalist and Anti-Federalists alike, the records of the Constitutional Convention, and the various State Ratifying conventions. Today, only Justice Thomas consistently favors this method. The others on the Supreme Court usually fall in line with those who, for over a century, have followed precedent in the Common Law tradition.

Apparently, though, the Ting Court perceived that the Ping opinion was an empty vessel, because it paraded quotes on the concept of sovereignty from a host of European commentators on international law, as authority for the position that sovereignty entails power over immigration. The Ting Court never once cited anything written by any of the Founding Fathers.

In the most fascinating part of the Ting opinion, the Court gave up on the effort to find a single constitutional provision granting the Congress power over immigration, threw up its collective hands, and listed every provision it could find, dealing with foreign affairs, in the hopes that the citation of so many powers in that field would give rise to the impression that the power to restrict immigration must be somewhere in the list:

The logic in Ting may be summarized as follows: The Feds have many powers in the field of foreign affairs; immigration restriction lies within the field of foreign affairs; ergo immigration restriction must be among the powers of Congress. One might as well reason that since Greeks are human, and I am human, then I must be a Greek. If I am, it’s not as a consequence of this line of reasoning. This particular logical fallacy even has a name: the Fallacy of Composition.

So what happened between the Founding in 1789, and the Ping opinion in 1889, that would account for the judicial attribution of sovereignty to the Federal government, in derogation of founding principles announced by Madison and Jefferson? The Civil War happened. That war answered all questions regarding the sovereignty of the states, in the negative. However, it is important to ask how it settled those questions. Was it by reason, or logic, or a clever reading of the Constitution? No, it was by force, and

No, it was by force, and force alone, that it decided those questions. Anyone who accepts that method of deciding constitutional questions, or accepts its results, has abandoned reason as a guide, and is thereby consigned to an Orwellian world, where truth, logic, and reason have no value, and language is only a tool of power. .

The USSC in several rulings has held "that the right to regulate immigration laws belonged to U.S. government" But is the US Supreme Court today a reliable authority on the original significance of the Constitution? Should the reader trust his or her own sound judgment, or that of nine adults dressed in mu-mus? Should the reader trust the judgment of the modern Supreme Court, or the words of the Founders? Should the reader exhibit a slavish adherence to their opinions du jour, or a healthy skepticism of the decisions of those robed bobbleheads? The reader would be right to question the Court’s decisions, to carefully examine them, and to judge them for yourself, rather than to blindly follow their authority, for, to quote St. Thomas Aquinas, “As Isidore said, ‘the argument from authority is the weakest argument.’ ” What have we just done, in that last paragraph? We have quoted an authority, himself citing an authority, for the proposition that the weakest argument is the citation of authority.

The prospects for convincing the Supreme Court to recognize the unconstitutionality of Federal immigration laws are not good. The Supreme Court is not an open debating society. They carefully select the cases they hear, and reject more than 95% of all requests. The country is divided into twelve judicial circuits, each headed by a Court of Appeals. Each circuit is divided into many districts, each headed by a District Court. Trials are held at the District level, and appeals at the Circuit level. The Circuit Courts rarely deviate from the latest precedent announced by the Supremes, and whenever they do, they are quickly slapped down ("reversed"). There is no automatic right of appeal from the Circuit courts.

[xoxoxoBruce]

It must have been Gibson.

[binky]

I think we need an animation of someone beating a dead horse

[classicman]

11 posts in a row and all of them that long.... puh and people complain about t-dub - lol.

[Shawnee123]

Shit. Is there gonna be a test? Are there Cliff's notes?