Immigration vs Naturalization

I read your article, and sorry to say that I don't agree with the fact that you sound like you are blaming on illegal for many things that are happening here. The most important thing to consider at this point are the words “immigration” and “naturalization” themselves.

foriegn born shouldnt be ble to marry to become an americaan citizeenship. they shouldnt buyy thier citizenship either by paying off an american cititzeen! ytthey must have a passsport,work visa,suporter and file for an I-9 form to get an I-94 documeent to work herre legally.

If every state controlled immigration, then every state would have to control immigration from every bordering state. This puts up huge friction between the travel of goods and people between states. Congress, under the Commerce clause, does have a valid interest in reducing this friction. So, a national immigration policy is useful, but not under the Naturalization clause (as you've noted).

It's sad that Constitutional experts are such history ignoramuses when it comes to the U.S. and Mexico. The U.S. started it in 1848 when it took half of Mexico's territory by force for its whites-only homeland, creating a de facto apartheid of brown-skinned people to invite white-skinned Euros in, while leaving runt Mexico eternally dependent on it. Now the chickens are coming home to roost, and some want us to believe we're still in the 18th cent. Sorry, but federal power has grown, along with the U.S., and no state is going to buck it for long. However, when it comes to our next-door neighbors in Mexico federal power is what is needed to do what's really necessary, which is to annex Mexico as 10+ new states, dissolving the unsealable border and putting all 414 million Americans on the same team and map under the U.S. Constitution. We could do it by military force, but it's not necessary with my 7-step Megamerge Dissolution Solution of doing it with the consent of the Mexican people in stages. Study the MMDS and tell me whether it's constitutional, I know it is, and it's the right solution too. Yes, all the new states will have states rights, more power to them.http://go.to/megamerge

oh, a quick afterthought, bob...arizona hb1070 doesn't nullify federal immigration law or change it. it empowers state and local police to enforce federal law, and empowers citizens to sue communities that fail to enforce the law.

Great points here...

The author's main point is that 'immigration' is not the same as 'naturalization.' Since 'naturalization' is specifically covered in Art I, sec. 8,, 'immigration' is not.

The author then asks if the 'necessary and proper' clause might extend 'naturalization' to include 'immigration.' I submit it does NOT because the extension must be BOTH 'necessary' AND 'proper.' While it might be proper to extend naturalization to include immigration, it is NOT necessary. (Governmental power is to be construed to be as limited as possible consistent with the terms of the Constitution.)

Finally, I submit that this is much like bankruptcy law, an area in which I have extensive experience. Federal bankruptcy law comes from the Art. I, Sec. 8, just as 'naturalization' law does. In bankruptcy, the US Constitution has been interpreted to allow the states to determine various specific aspects of the process such as the amount of exemptions a debtor can claim. In that sense, the law is not 'uniform' despite the wording of Art. I, Sec. 8. Nevertheless, courts have "allowed" this since the outlines of the bankruptcy law are set at the national level by Congress. The term "uniform" apparently means "mostly uniform" to most federal judges.

(This is why, for example, OJ Simpson moved to Florida and bought an expensive home there after his murder problems started. He wanted the generous homestead bankruptcy exemption offered there.)

If states can set their own specific provisions for exemptions in a federal bankruptcy case, I submit states can also set their own terms for how someone enters their borders (immigration). Exemptions are an integral part of the federal bankruptcy law while immigration is not arguably even included in the term 'naturalization.'

Finally, I am very pleased to see the focus finally starting to turn to the state constitutions. That is something that has been completely ignored for FAR too long! Even most lawyers I know have virtually NO knowledge of their state constitutions because it has not been needed due to the rise of the federal government's power. The State of Oregon's Constitution was not even taught at the University of Oregon School of Law from which I graduated!

It's time to reverse that and start thinking of the States as the superior entity.

Michael and I have debated this and shared ideas on it. First, I do not think it proper to insist that the only argument for holding the 4th and 5th are applicable to states is via the incorporation doctrine. There are valid arguments, but not dispositive proof one way or the other, that they applied without recourse to any incorporation theory.

The distinction is that, via incorporation, these amendments did not apply to the states until the 14th was passed post Civil War. However, there is some argument in favor of the notion that they applied from the outset in 1791.

Madison, the original author, argued that certain amendments were designed to restrict state government activity as to citizens' rights. But, the language was changed in some respects, and further, it can't be ascertained with certainty, as far as I can tell, that the amendment passed based on the thought they were to apply to states. They could have passed on a different understanding - or for that matter, on a complete misunderstanding.

We can all argue pro/con application to the states, and we can show policies that support each argument. But, as of yet, I see no definitive evidence that lends more credence to either side of the debate. Maybe someone has something solid of which I'm not aware.

It will be most interesting to see what happens in the near future as more and more states began to nullify federal law within their jurisdiction. They are fully in their right to withdraw these delegated powers, especially when the federal government is abdicating their responsibility.

This type of legislation takes one right back to the decades preceding the supposed “civil war”. The states saw the tariff taxes as unconstitutional acts by the federal government, so they began to take legal actions to protect their people.

They attempted to prevent these unconstitutional acts via their senators in congress. When this failed, the states began nullifying federal laws within their states. Finally, when the federal government was hell bent on looting the people of the southern states of their wealth via taxes, etc the people through proper legislation withdrew their consent to govern by the despotic federal government and the governed officially withdrew their consent.

Interestingly enough, the southern states have never been readmitted back into the united States of America through the southern states lawful state legislators. (And before you start it doesn’t count when the federal government dissolved the lawful state government and replaced them with the “new” legislators and governors from up north and say pass this legislation or we’re going to kill you). This still makes the southern states occupied territories as General Lee lack the authority to surrender any thing but his Virginia army.

Hi Mr. Matthews. Regarding the scope of the Constitution, please consider the following. We already know that James Madison had proposed making some parts of the BoR applicable to the states, although his proposals were ignored.

Next, using the 1st A. as an example, Thomas Jefferson had likewise indicated that constitutional limits on government powers applied to the federal government, not the states (unless expressly indicated). See for yourself.

"3. Resolved that it is true as a general principle and is also expressly declared by one of the amendments to the constitution that ‘the powers not delegated to the US. by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people’: and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the US. by the constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, & were reserved, to the states or the people..." --Thomas Jefferson, Kentucky Resolutions, 1798.http://tinyurl.com/oozoo

Note that although the power to regulate (cultivate) religious expression, for example, might sound evil, this is that same power by which the states can authorize things like creationism to be taught in public school classrooms.

Getting back to the scope of the federal Constitution, Justice Marshall had clarified in Barron v. Baltimore (1833) for instance, that general limits on government power in the Constitution, limits not specifiying federal or state governments, apply only to the federal Congress, not the states.

"The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states." --Barron v. City of Baltimore, 1833http://tinyurl.com/d4kzb

Finally, John Bingham, the main author of Sec. 1 of the 14th A., had cited many references, including the Barron case, which clearly showed that the Founders had decided not to make the Constituiton’s general prohibitions on government power, including those in the BoR, applicable to the states. Bingham’s research undoubtedly helped inspire him to make Sec. 1 of the 14th Amendment. Many of Bingham’s references are on the page at the following link. The page is from the post-Civil war Congressional Globe and is part of Bingham’s official clarification of the scope and purpose of the 14th Amendment.
http://tinyurl.com/y3ne4n

Today’s problem concernng the 14th Amendment is this, IMO. As consequence of citizens not knowing the Constitution and its history, activist justices and justices are getting away with legislating special-interest perversions of the 14th A. from the bench.

It's not a problem, anymore - since 1808.

Actually, the United States congress is only allowed “to establish an uniform rule of Nationalization, and uniform laws on the subject of bankruptcies throughout the United States”. They are not authorized or enumerated with the authority “to establish an uniform rule of Nationalization… throughout the united States of America”. A legal dictionary (e.g. Blacks law) distinguishes between the “United States” and the “united States of America”. Usually it was meant that the “United States” is the corporation in charge of executing the enumerated powers delegated by the states and that the “United States” congress is completely sovereign in their own territory (e.g. Washington D.C., and its territories). The “united States of America” on the other hand refers to the 50 states, where the “United States” has very limited authority, which based on the founding fathers philosophy, was still subjected to the State and its people.

Actually in Florida it is very unreasonable for any state, county, or local official/employee to ever ask for identification, unless, you are being detained for a crime that involves a tangible injury to one of the people. The State of Florida Constitution Article I Section 23 “Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein”. Of course, you have to be a natural person, in order for this to apply to you. Also, in Florida, if you are ever placed under arrest, you should immediately demand to be taken before a magistrate, as they are the only ones who can legally detain you… of course, the pigs are to uneducated and ignorant (as well as many of the people) to know that it becomes kidnapping, once you have demanded to see a magistrate and they refuse

The Governor of Arizona needs to up the ante.

Section 172 (A) of the Arizona Revised Statutes Title 26 states:

"When the governor proclaims an emergency, or deems it necessary to protect lives or property, the governor may mobilize all or any part of the national guard or the unorganized militia into service of the state."

The governor could proclaim an emergency based on the fact that illegals pose a danger to the safety of the people of Arizona. The drug runners have given the governor this option on a silver platter.

Other than federal land, where Arizona has no jurisdiction, all the property in southern Arizona belongs to private citizens or the State of Arizona. It is well documented that illegals are trespassing and vandalizing property during their trip north. Thus, the governor could mobilize the militia to protect property because the illegals have triggered this option too.

Go Arizona...up the ante show the A-holes in the federal government that the States are alive and breathing. The federal government has no jurisdiction on private or State land within the borders of Arizona. Send the militia and National Guard to the border and tell the feds to F-off!!!!.

Section 9, Clause 1 is a problem, IMO. Yes, it was made to address slavery concerns. But I'm trying to point out that regardless of what it was intended to do, its strained wording arguably works in Arizona's favor.

Also, note that we no longer have the Congress established by the Founders. If the federal Senate was still controlled by the state legislatures then I wouldn't expect Congress to automatically make the next person who walks through the door a US citizen. However, the ill-conceived, anti-state sovereignty 17th A. has effectively changed the country from a republic to a mob-ruled democracy. And it wouldn't surprise me if the corrupt, Constitution-ignoring Democratic Congress would offer all earthlings US citizenship in exchange for voting for Democrats.

Michael-in my opinion your are right on the money.

The only general power granted to the federal government concerning aliens is the power to establish a uniform rule of naturalization. This provision was inserted because there was, in the words of James Madison, a “dissimilarity in the rules of naturalization” among the States. By vesting this power in the federal government, as opposed to the individual States, the Founders ensured that the qualifications for becoming a citizen would be uniform throughout the several States.

In other words, the States collectively as opposed to the States individually would set the rule for becoming a citizen.

Unless Arizona is attempting to create a new rule of naturalization, which it is not, there is no constitutional issue... period!!!

Nice cite. See? Even they agreed with me. ;-)

But you get the idea. I don't think the states were going to let the federal government have the authority, by omission, to allow an influx of immigrants to potentially lay waste to their economies.

Some good points, Jeff...thanks for sharing on that.

As far as war and the states - check Article I, Section 10 - it specifically permits states to engage in war in specific situations.

I see. Sometimes, to you. Sometimes, not. It just seems to keep subject matter more organized.

You are right in that incorporation has gone overboard. I am in complete agreement. There are (were) certain issues, like examples I gave yesterday, where I could see the benefit of uniform standards that do present some amount of restrictions on states. Without this theory, the Constitution might have been amended anyway, to address them.

While it is often said the Constitution is strictly to be interpreted as restricting the feds, I find many provisions that operate as restrictions on states. Section 8 powers also restrict states. The concept of comity, as required in the Const., also restricts states.

But anyway, some degree of uniformity of law is good in some areas. Excessive uniformity, such as what we have today, is bad.

As to immigration enforcement, you and I agree (as you can tell by the article I sent).

By way of analogy, Congress might have authority to declare war, but I don't take that to mean every state needs to sit back and suffer military invasions from other nations until such time as Congress feels ready to fight back.

Maybe a literal interpretation might require such, but there is a concept of sovereignty which I think rises above governmental "fancy."

eh, I don't know about ketchup. I don't really consider a SCOTUS decision to be a good reliable source for claiming an original position. That would leave me open to looking at case law, which is something I resist quite easily.

As far as the practical matter, I may not have been clear. I can certainly understand the reasoning and desire for incorporating, but disagree that they are effective in achieving the goal....believing instead that advances in freedom will require doing opposite what we have now - incorporating, that is - which, in my opinion, has been the cause of many of the problems we face today.

No, I don't want to debate "incorporation" with you. Been through all that too much already. But when you use the reply button for one of my comments, I take it as you are commenting directly to me rather than just sharing information.

Never mind. I've been down this same road some months back, now that I recall. Example link to discussion of application to B of R to states prior to the 14th: http://en.wikipedia.org/wiki/Barron_v._Baltimore

Michael, you are right. Got any ketchup for my crow?

The only thing making me consider application to states is that there are many problems associated in various areas by NOT making them applicable to states. You and I discussed those yesterday, and you agreed they would be problems.

As you put it, stealing from Natelson, "Just because it is Constitutional does not make it good."

With that, I agree.

Granted, it's your site, but to ask me not to debate. I've never asked anyone to not debate before.

Just ignore me if you are tired of trying to convince me. All I'm looking for is more information. I already told you I am not sold on either side of the argument. So, I'm not trying to get you to believe me. How can I if I don't know for sure what to believe?

Make sense?

In any event, if I bounce across anything, or if you do, let's just e-mail.

I'll restate:

Actually, Jeff - I'd argue the other way around. There has been NO indication of applying any of the bill of rights to the states - starting before the 14th.

Attempts to do so were all rejected. Including, as you and I have discussed, Madison's proposal to specifically do so with the 5th amendment, where he included wording to do so, which was not approved as the final amendment.

Even the greatest proponents of applying the bill of rights to the states (such as Barnett, Lash and others) take that position. there's just no serious discussion or debate, whatsoever, on the founders applying the Bill of Rights to the states.

To leave out the preamble to the bil of rights, and understand that wording in 18th century law as it was intended - as restrictions on the federal government - is to completely mistake the whole principle.

As far as this question - there is no question. The final product was widely accepted, in unison. there were discussions about doing this differently, and they were rejected. Plain and simple.

Please - no more debates on this, Jeff. Thank you.

I guess the short of it is it really strikes as not subject to pure, dumb coincidence that they put "Congress" in the 1st, if the idea of all the amendments was that they did not apply to states. There were a great many lawyers, scriveners, politicians and intelligent people involved in the final product, and I can't imagine at least one or two of them not seeing this discrepancy and wondering, "Why are we saying 'Congress' in the 1st and not the others?"

You say there is NO indication of incorporation starting before the 14th. I agree. Incorporation means "by, through and under the 14th." So, that is obvious.

Less obvious, I think, is whether certain prohibitions already applied to the states, thereby dispensing with any need for any incorporation theory to apply to them.

As you can I discussed, the 1st says, "Congress shall make no law." The 5th says "No person shall be deprived...." It doesn't end with "by the federal government."

Madison's proposals, so far as I ascertained from brief research, were worded quite differently to the extent where even the subject matter was grouped differently. There were arguments in opposition. But simply because the wording was changed does not mean everyone agreed with the opposition. And of course, the opposition itself was disjointed. It wasn't that all arguments were either for "A" or "B." So, how could anyone derive anything from the mere fact the final wording was different?

Who knows for sure what the understanding was on these issues at the time of ratification? Did they think, for example, just as was argued that the 10th was surplusage and had no effect, that it was already clear certain portions applied to states and it was not necessary to say "by the states?" As shown, they knew about "Congress" being prohibited, yet on the others, there is nothing but silence. Anyone could rationally argue that if the 5th was to be restricted to Congress, they could have put "by Congress," just like they did in the 1st. It would have been very easy to do if that's what they intended.

Further, given Madison's arguments that they should apply to states, I don't know how leaving out "by the federal government" in the 5th (while having "Congress" in the 1st) could reasonably be argued it was just mere oversight. They were confronted with Madison's view, and if they opposed it, they could have easily made clear they were passing it on the basis that Madison's argument was rejected by simply putting "by the federal government" to make that much clear.

This is a very interesting issue. I do not claim to have THE answer. Maybe someone has evidence beyond what we've already discussed.

Not something I was aware of - thanks for the input on this!

Absolutely agreed on this, Jeff. The question in the article is solely about immigration, which is why definitions were given for both that word and naturalization. The question I think has a strong answer, not definitive, but deeply in favor of states making their own immigration laws.

Actually, Jeff - I'd argue the other way around. There has been NO indication of incorporation starting before the 14th.

Attempts to do so were all rejected. Including, as you and I have discussed, Madison's proposal to specifically do so with the 5th amendment, where he included wording to do so, which was not approved as the final amendment.

Even the greatest proponents of incorporation (such as Barnett, Lash and others) take that position. there's just no serious discussion or debate, whatsoever, on the founders applying the Bill of Rights to the states.

The states do not have power to declare someone a citizen. Congress is vested with authority to fashion a uniform rule on Naturalization.

States have modeled many of their laws under the federal interpretations of the Bill of Rights. For example, there are steps, or degrees, under which government scrutiny is allowed. For more information, look up search and seizure laws and read into "Terry Stops," "exigent circumstances," etc.

I'm kind of curious about the idea that only states have the power to declare someone a citizen. This article seems to make the distinction between naturalization and immigration and, according to this article, the power to declare someone a citizen seems to rest in the hands of the states themselves. A state has the power to declare someone a citizen of their state but once they do that then they automatically become citizens of the federal government under the 14th amendment. The point is is that it is the state individual perogative to allow someone into the country and make them citizens but a citizen of any state is a citizen of the United States at the same time.

What are other people's thoughts on this?

Thank you for clarifying the difference between immigration and naturalization.

On a related note, I stumbled across Article I, Section 9, Clause 1 the other day, the slave clause, which reassured me that AZ's law is indeed very constitutional.

Article I, Section 9, Clause 1: 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.

The way I see the above clause, particularly the wording "as any of the States now existing shall think proper to admit," is the following. In order to get the Southern slave states to agree to join the Union, the Founders had to compromise by allowing the states to retain their immigration powers.

And how ironic that the immigration powers that the Section 9, Clause 1 delegates to Congress was to prohibit immigration, not the power to encourage or respect immigration. I other words, Congress evidently has the power to build a fence along the border, but not to grant amnesty to illegal aliens.

Corrections to any of the above welcome. It's sometimes a challenge to wear the 18th century thinking cap.

I would expect that conservatives who oppose such things would actually start using that argument! But yes, this is the kind of claim that comes from people who want more federal power. It's wrong, of course.

If, hypothetically speaking, CA were to enact immigration laws that directly opposed AZ's immigration law, then it could be argued that illegals could do an end-run around the AZ law by crossing the border in CA and then across state lines to AZ. Progressives would likely argue that since this activity has a substantial effect on interstate commerce, the federal government is therefore empowered to step in under the guise of the Commerce Clause. I don't endorse that theory, but I think it's always helps to try and anticipate where the other side might go with this.

Here's a few more articles on the subject:
http://www.tenthamendmentcenter.com/2010/03/05/gu...
http://www.tenthamendmentcenter.com/2009/08/12/ph...
http://www.tenthamendmentcenter.com/2009/06/15/th...
http://www.tenthamendmentcenter.com/2009/05/01/tu...

The claim that the 14th applies the 4th (or any other amendment) to the states is the same as saying that the court precedent that has given us unconstitutional expansions of the commerce clause to regulate (i.e. control) guns, wheat and weed - is somehow ok.

The view that you've mentioned here was only brought about through court precedent, not through the original view of the 14th itself. The interview I provided in the link above gives more information from one of the nation's leading constitutional experts (not the kind they have on tv and in the government-loving media, though). Listen to it and get a view you've likely not heard.

Michael, would not this be a possible violation of the 4th via the 14th though? Since in effect the 14th would push the 4th down to the state level?

But - do they ask for id, simply for being in a car? And, since this is NOT a federal issue, what does AZ's constitution say? See Article 2 of the state constitution on due process and privacy to really analyze it properly.

If you commit an act which is against the law (speeding, theft, murder, jaywalking.....it doesn't matter if its on the books) the police will ALWAYS ask you for identification.....no matter who you are.....that is in no way "unreasonable".

There is no such thing as a violation of the 4th or the 5th or the 2nd or any other of the Bill of Rights - by state governments. That's an issue covered on this site quite regularly - the incorporation doctrine. Listen to this podcast with Prof. Kevin Gutzman on the issue: http://www.tenthamendmentcenter.com/2009/11/24/ke...

But, such violations are an important consideration - and why I made mention about the AZ constitution, which specifically addresses rights to due process and privacy. Why is that not part of this debate - as it's the law of the State of Arizona?

What about the violation of the 4th and 5th amendments? Reading the actual text of the law, I am concerned about unreasonable search and seizure and self-incrimination. This is bigger than just an immigration issue - this law has the potential for substantial abuses by the state.