Immigration, Foreign Affairs and the Constitution

Kansas lawmaker wants to adopt Arizona immigration law https://kansasliberty.com/About/logging-in-for-ka...

I think this is an excellent article. I've read in the federalist papers where hamilton seemed to describe three classes of powers between the state and federal government. One was where the federal and state government had concurrent powers and that was when powers were delegated by not restricted to the state. Under this interpreation a state and federal government could both create laws using the same delegated power the federal government has.

True Patriot:

I don't think they are communist, but I do think many of these people are very middle and upper middle class. Part of what Chris Hedges calls the "intellectual elite" (as sick as that sounds).

Because of this many of these people will never be directly affected by such sudden influx of people and will never feel the pinch to their own job life lines. They will never live in neighborhoods that are completely spanish over night (or russian for that matter).

Simply put, these people like to fawn as compassionate and "modern" people who harbor no "racism", when in fact they would be just as upset about it if their jobs were jeopardy.

I have had family threatened by them for not other reason than they were 10 years old and a "target" by a car load of these illegal aliens. I have worked with many that are here legally and who contribute and want to follow our laws, but I have also worked recently with some that displayed hostility to me (apparently for taking temporary employment with an employer that they have been monopolyzing....I notce they are feeling threatened by the increasing numbers of Americans that are willing to take these jobs that during good economic times were more traditionally taken by illegals), and during this job I had to help those Mexicans that could not read or write. Yes, there are many illiterate Mexicans being encouraged to come north.

An American born Mexican gal I worked with continually sent out derogatory jokes about Swedes. The "swedish jokes". They were offensive as I am swedish. Nothing was done. If I had done something similar about Mexicans which I would never do, I would be fired immediately.

This American born Mexican is 24 years old and has never heard of Hitler. She is raising her children to speak only spanish and told me I need to learn Spanish. She is one of the most racist people I ever met. Yet, I could do nothing about it.

Something is wrong. Another crowd of these people like to insist that no whites have any right being here.

Its all so overwhelming. The fact is, though, they have over 20,000,000 (at least) here illegally. We will never be able to stop this tide now.

I agree that, in a liberal welfare state such as the USA, the problem of illegals is huge. Even if we were not so generous (with money we don't have), however, entering a country illegally is, OBVIOUSLY, a crime. It's unwise to have laws if you do not intend to enforce them. So, this is a big issue no matter how you slice it.

The fact it is a big issue, however, doesn't go to whether the law in AZ is unconstitutional. Whether a law is unconstitutional requires, at least, a reading of the law in question and the US Constitution to see if the law conflicts with any of the provisions in the US Constitution.

Most of the legal debate here deals with whether a state has ANY power to act in the area of immigration under the US Constitution.

In simple terms, one side is arguing that immigration is not mentioned in the US Constitution at all so, because of the principles underlying the 10th amendment, Congress has no power over immigration in a given state and the states and the people thereof are free to act as they wish. In other words, the law in AZ is not unconstitutional on its face. (There may be some specific aspects of the law that violate the US Constitution.)

The author of the article is arguing that the US Constitution gives Congress, as well as the states, the power to act in this area because immigration amounts to 'foreign commerce' as that term is used in Article I, sec. 8. In this view, if Congress acts, it may trump any state action under the Supremacy Clause and an issue called preemption.

I submit you don't have to be a lawyer to conclude that 'commerce' does not encompass immigration. You can decide for yourself which argument is more persuasive.

BTW, it's important for people to keep in mind that you don't have to be a lawyer to read and understand the US Constitution. James Madison, the primary author, was not a lawyer and the US Constitution was not intended to be read only by those schooled in the law. (Law school as we now know it did not exist at the time of the drafting of the US Constitution.)

It may surprise some people to learn that, sadly, most of law school today in general is about 'case law' and almost none of it is devoted to study of the drafting, ratification and meaning of the US Constitution. That's why most lawyers know very little about the US Constitution and its history and that's why law professors can often seem so off-base to lay people of ordinary intelligence who read the US Constitution. Law professors are normally talking about case law and NOT about the words of the US Constitution. Big difference!

The author argues in a comment here:

"[L]egislating on immigration is within federal power both because of the congressional naturalization power and because of the power to regulate "Commerce with foreign Nations." The Founding-Era definition of "foreign Commerce" included the movement of people across national lines. "

In further comments here, the author seems to have dropped the first line of argument (congressional naturalization power).

The second line of argument is that Congressional power to regulate 'commerce' includes regulating the movement of people across national borders. The author asserts that the term 'foreign commerce' was defined in contemporary dictionaries to include the movement of people (across borders).

The term 'commerce' was defined by Samuel Johnson in his 1785 6th Edition (contemporary) Dictionary of the English language as follows:

"Intercourse; Exchange of one thing for another; Interchange of any thing; trade; traffick;"

The word "Traffick" is defined as:

"Commerce; merchandising; large trade; exchange of commodities. Traffick was formerly used of foreign commerce in distinction from trade."

Finally, 'Trade' is defined as:

"Traffick; commerce; exchange of goods for other goods, or for money."

All these synonyms for commerce involve the idea of business transactions where one is exchanging one THING for another. (That is, by the way, the same way we commonly use the terms 'commerce' and 'commercial' today.)

(The term 'foreign commerce' is SPECIFICALLY mentioned in this dictionary and is associated with the word 'traffick' in order to distinguish it from 'trade' which, presumably, did NOT involve FOREIGN entities.)

The word 'people' is simply not there. Not surprisingly, there is no indication that the term 'commerce', at that time, included the movement of people where trading and exchanging things is not involved.

It's hard for me to understand WHY people who generally agree with the idea of LIMITED government try so hard to EXPAND the powers of the government by reading things into the Constitution that are not there.

For those who care, here's a link to the free, online version of Samuel Johnson's dictionary:
http://www.archive.org/details/dictionaryofengl01...

I concur with the author that the federal government has only the enumerated powers delegated to it, and that this does not mean that when it has a power that the states cannot have some power as well. However, a fortiori, once the federal government does not meet its obligations, it lacks justification to prevent anyone or any thing from self-protection.

If we hired a sheriff, who did not protect us from gunmen, he would have no right to stop self-protection. (The case of Bernhard Goetz comes to mind, where the police did not protect subway riders in NYC from hoodlums, but captured the sole man who protected himself.) It is true that under these circumstances, there is some danger of anarchy, but the government that in practice furthers illegal immigration is worse than anarchy.

I agree that, in a liberal welfare state such as the USA, the problem of illegals is huge. Even if we were not so generous (with money we don't have), however, entering a country illegally is, OBVIOUSLY, a crime. It's unwise to have laws if you do not intend to enforce them. So, this is a big issue no matter how you slice it.

The fact it is a big issue, however, doesn't go to whether the law in AZ is unconstitutional. Whether a law is unconstitutional requires, at least, a reading of the law in question and the US Constitution to see if the law conflicts with any of the provisions in the US Constitution.

Most of the legal debate here deals with whether a state has ANY power to act in the area of immigration under the US Constitution.

In simple terms, one side is arguing that immigration is not mentioned in the US Constitution at all so, because of the principles underlying the 10th amendment, Congress has no power over immigration in a given state and the states and the people thereof are free to act as they wish. In other words, the law in AZ is not unconstitutional on its face. (There may be some specific aspects of the law that violate the US Constitution.)

The author of the article is arguing that the US Constitution gives Congress, as well as the states, the power to act in this area because immigration amounts to 'foreign commerce' as that term is used in Article I, sec. 8. In this view, if Congress acts, it may trump any state action under the Supremacy Clause and an issue called preemption.

I submit you don't have to be a lawyer to conclude that 'commerce' does not encompass immigration. You can decide for yourself which argument is more persuasive.

BTW, it's important for people to keep in mind that you don't have to be a lawyer to read and understand the US Constitution. James Madison, the primary author, was not a lawyer and the US Constitution was not intended to be read only by those schooled in the law. (Law school as we now know it did not exist at the time of the drafting of the US Constitution.)

It may surprise some people to learn that, sadly, most of law school today in general is about 'case law' and almost none of it is devoted to study of the drafting, ratification and meaning of the US Constitution. That's why most lawyers know very little about the US Constitution and its history and that's why law professors can often seem so off-base to lay people of ordinary intelligence who read the US Constitution. Law professors are normally talking about case law and NOT about the words of the US Constitution. Big difference!

We have been plagued with too many illegals entering our country for far too long. They are given free medical care at emergency rooms, their anchor babies are are given food stamps, medicaid schooling, free lunches, etc. The illegals are making it impossible for families who are citizens to get some of the aid they should be entitled to (not enough money to go around).
We have got to protect our states if the Federal Government wishes to do nothing. I don't see how any one can think Arizona's law is Unconstitutional.

"The doubt about the judicial fate of Arizona’s law arises only because of the Supreme Court’s occasional practice of striking down state laws that Congress has decided to leave alone."

I say even if the Supreme Court strikes it down, Arizona should go ahead and continue enforcing its immigration law, essentially telling the feds, "We dare you to come stop us."

Why doesn't Arizona sue the federal government and require that the federal government protect their border with Mexico? We frequently talk about the areas where the federal government oversteps its rights but this is an area where they don't do their job. One of the reasons that any state would participate with a federal government is the commitment by the federal government to protect the state from foreign invaders.

Hello Phil,
...received your email note and would love to have you. When I am Governor of NV, we will have a few surprises for our wayward fellows in the federal branches. The citizens Grand Jury will have the backing of State law enforcement. Best wishes!

Sincerely,
Gino DiSimone
Candidate, Governor of Nevada 2010, Independent non-partisan, GIN ! (Go Independent Nevada ! ) www.ginoforgov.com

I felt I should add this, hoping that maybe it will help understanding.

I felt I should add this, hoping that maybe it will help understanding.

Let us also not forget who the sovereignty is. It is we the people. Government is only to protect and preserve our rights, and to provide services we authorize. The federal government, nor the State government, nor local quasi governments can tell us we cannot defend ourselves and others (as in the above) from foreign invasion. They simply do not have that authority, no matter how high minded explanations might seem. If the authority is not granted clearly in the applicable constitutions, it does not exist.

And, needless to state, but necessary, one would be hard pressed to find one official at any level that obeys their Oaths of Office. To date, I have not found one that stays within the confines of the Constitution FOR the United States of America, the state's constitution (Missouri in my case) or even one federal or state statute by any official or their de facto enforcers that is obeyed. I do not exaggerate - officials ignore statutes and the Law and pretty much do as they wish and then defend one another.

Your rights are inherent and unalienable (or inalienable) and you are sovereign to government. Your rights to live in liberty exercising your rights right up to the point of interfering with the rights of another. Our rights cannot be lawfully legislated or voted away. And, I guarantee you, that foreign illegal aliens (and the quite probable one in the White House) interfere with your rights, your property, and all that America once stood for.

We are the people and the rights we have existed long before the spoken word let alone the written word. Those rights cannot be regulated - they may only be oppressed through force. And, that is the real issue - exactly what statement in our Creator's laws, in the Declaration, and the constitutions give government the authority to suppress our rights, reducing us to in servitude positions to government?

Congress acting through the commerce clause is illegal, as we people of the many states are free to trade with one another as we wish. Its authority is to regulate trade between the many states as a whole (among, not between) and foreign states, but not between - say, Missouri and Illinois. It is a massive fraud with government taking power through force, which helped create the de facto government ruling by force over us, and applying de facto law to us without any authority whatsoever to do so. Besides, Congress has no authority within the many states - it may only regulate as Article I, Section 8, clauses 17 and 18 and Article IV for territories. The U.S.C. is the United States Code, not the United States of America's Code.

Hence, as long as so called experts keep giving people misleading and false information, the balance of our time and efforts (for ourselves now about 40 to 50 percent) will be for the benefit of government and its controllers. What I mean is that prior to the Federal Reserve fraud, the 1938 U.C.C., the Erie decision, and a few other frauds, people got 100 percent of their earnings with very little going out to provide revenues for limited government. Now, between 40 and 50 percent go directly to the International bankers and governments in the form of taxes (including such unlawful actions as fees to travel, own, marry, run a business, etc,)

Think, People, of the behaviors you could exhibit if you were the only man or woman on the continent. Now, imagine that you can do exactly the same EXCEPT AND UNTIL you begin interfering with the rights of another. That is the point your behavior may become a crime or subject you to a civil action for damages.

That, Folks, is freedom, which means "not under the control of government." Our right to defend our homes is a right that government cannot interfere while simultaneously the illegals coming into our land have no rights to be defended, just as an invader into your living room has no rights.

Look at it this way. They use enforcers of de facto law and/body guards to defend themselves, their property, and their families. We are our own body guards and we are the enforcers (police and militia) of de jure law.

It is interesting that the unlawful actions committed by the federal government today are the same issues the south riled against in the 1860s.

To quote South Carolina's Declaration of Causes document:

"The people of the State of South Carolina, in Convention assembled, on the 26th day of April, A.D., 1852, declared that the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union; but in deference to the opinions and wishes of the other slaveholding States, she forbore at that time to exercise this right. Since that time, these encroachments have continued to increase, and further forbearance ceases to be a virtue."

and:

"Thus were established the two great principles asserted by the Colonies, namely: the right of a State to govern itself; and the right of a people to abolish a Government when it becomes destructive of the ends for which it was instituted. And concurrent with the establishment of these principles, was the fact that each Colony became and was recognized by the mother Country a FREE, SOVEREIGN AND INDEPENDENT STATE."

and:
“This sectional combination for the submersion of the Constitution, has been aided in some of the States by elevating to citizenship, persons who, by the supreme law of the land, are incapable of becoming citizens; and their votes have been used to inaugurate a new policy, hostile to the South, and destructive of its beliefs and safety. “ http://www.scribd.com/doc/29089345/South-Carolina...

I would add that the state's have never given up their sovereign rights, nor have they given up their rights to nullify the federal government's unlawful acts, or to withdraw from the compact between the states.
http://www.scribd.com/doc/29966009/JS-To-Secede-o...

Yes it is Constitutional. It mirrors the federal law while adding restraints and guidelines for racial profiling. Furthermore it is the state(s) right to protect the general public when the federal government does not or will not, even after repeated pleas from the state(s).

But, amnesty should never be awarded to illegals who clearly have no respect for Americas immigration laws. This country is no problem to get into legally. Amnesty will only give citizenship to the drug cartels, gun runners and other violent criminals. Amnesty would also insure a demon-cratic controlled government for a minimum of 60 to 80 years. Due to the Obama controlled media and the language barrier coupled with a lack of of American political knowledge most all Mexicans think Obama is the greatest guy in the world. They can't even tell when he is lying!

There are many, many illegal Mexicans here in East Tennessee. Most are good people who are hard workers and just want a better life but a smaller percentage are not decent people.

If I were to rob a bank and get caught. Would it be fair for all other citizens if they say to me, "Naughty naughty.", give me a bag full of money and send me home?

I started to post this as a reply to Julie, as it is she that brought it up but thought it might interest others so I am adding it here.

Just for your interest, the USSC is a municipal court created for Washington, District of Columbia, through Article I of the Constitution. The Article III one supreme Court is the Supreme Court of the United States.

Also, USDC (United States District Courts) are territorial courts while District Courts of the United States are Article III courts of law.

In the Article III SCUS you have inherent, unalienable rights. In the USSC you don't - you are treated as a privileged 14th Amendment citizen. The same is true for DCUS verses USDC. And, we by birthright Americans are NOT 14th Amendment citizens with privileges called "rights" granted by the US Government Corporation.

The material I have is copyrighted and I do not know if the primary researcher has released it for public consumption or not. Search for DCUS v USDC and see what you come up with. If anything is listed by a man named Mitchell, study the material. I used to correspond with him but in a crash I lost over 8000 e-mails and a ton of bookmarked sites for law and legal matters, including the information I had on him and this matter.

As far as the federal government being a corporation, that is right in the USC. For verification, go to the U.S. Code, Title 28 - JUDICIARY AND JUDICIAL PROCEDURE, (Chapter 176) Section 3002 (15) (a,b, & c); it states:

(15) "United States" means -
(A) a Federal corporation;
(B) an agency, department, commission, board, or other entity of the United
States;
(C) an instrumentality of the United States

Also, from 19 C.J.S. 883: "The United States government is a foreign corporation with respect to a state."

I have cites to this effect but the statute and C.J.S. (Corpus Juris Secundum or body of the law) cite should suffice.

The important point here is that just as MacDonalds corporation or Joe Blow's Plumbing, Inc. cannot order you about unless you contractually agree to allow it (such as going to work for the corporation), neither can the corporation named the United States. Fraud and fear rule, not the rule of Law.

I think you've got it!

Please see my reply to Prof Natelson's 2nd comment (above) where I make a similar argument.

Thanks for addressing some of the issues. I'll address your points seriatim for the benefit of any readers.

1) You need to specify the source material(s) you're relying on and what it says. I can simply refute your claim about contemporaneous dictionary definitions by simply saying that some late 1700's dictionaries do NOT include "people" in commerce. Notice I gave no source for that and I didn't quote anything. Good luck proving me wrong.

2a) Indian commerce is truly "commerce with a foreign nation" and yet you, yourself, seem to assert that the states were regulating it at that time.

2b) By "Confederation Congress" I assume you mean "The Congress of the Confederation" which operated from 1781 to 1789 under the Articles of Confederation. If that's what you're referring to, I don't recall the central government had, by virtue thereof, the power to control foreign immigration, although the Articles of Confederation specifically provided that US citizens could move freely among the states. That's not the same, of course, as non-US citizens moving about.
Further, this movement of people was not referred to as 'commerce' in the AoC. The word 'commerce' appears only twice in the AoC and, in both cases, it refers to the common meaning of commerce as in business transactions. This undercuts your argument that commerce included 'people' in the late 1700's.

3) The "evolution" of the P&I clause you mention may relate to the 'freedom of movement' argument discussed in 2b above. I don't know for sure what you mean by 'evolution' except that one could argue the provisions of the AoC discussed in 2b above were simplified in the US Constitution, Art. IV, sec. 2, cl. 1 to simply 'privileges and immunities.' If that's the argument, then you're just restating that 'movement' argument so I'll just refer the reader again to 2b above. I'm not aware of any other meaningful 'evolution' of the P&I clause so it's hard to know what else to say to that point.

In sum, your argument seems to boil down to the assertion that 'commerce with foreign nations' includes the movement of foreign people. That claim is is not obvious, nor is it well supported and, IMHO, gives away FAR too much.

Again, immigration is NOT naturalization and there is no specific provision in the US Constitution that allows Congress to regulate it.

All of you are to be commended for presenting well thought out, reasoned arguments without name calling. It is refreshing to see that. I'm used to something very different when I read comments on other sites.

Dewayne Burgess
Topeka, Ks

I wish I lived in Nevada so I could vote for you, spot on!

Thanks for reading!

This law is better than opening fire on them when they set foot illegally on American which is how Mexico can do it. Don't believe it Google Mexico immigration Laws

"On the other hand, the Supreme Court also sometimes lets such enactments stand. So what the Court would do with the Arizona law is anybody’s guess."

It doesn't matter what the USSC has to say about it; fully-informed empaneled juries can set aside USSC decisions.

fogot to put "over ride the states"in before because.

The states are free to lower OSHA standards as they see fit. Some, however, would incorrectly argue that the federal government can because of interstate commerce.

Screw foreign policy!
All states have the right to defend their land, citizens, and societies from foreign invaders, be they simple people or armies.
Anytime our fed refuses to do their job, any state has the authority to take that job over. Especially within their state borders. If the national border coincides with a state border and the fed reuses enforcement, then the state has every right to enforcement.
The second part really does a number on the feds.
That is that any federal employee who refuses their enforcement position is also in violation of the same federal laws, including those in charge and legislators...collusion, RICO statutes, etc.
Talk all you want, just like other so called activist who do nothing, those who take vocal objections sure don't seem to be seen out in the desert offering help, now do you?
>I wonder why no law enforcement surrounded any of these protests and checked their papers?
Lost a golden opportunity...!?
These people even said they were illegal...?
Where was all you homeland security and ICE people?
Oh yeah! Almost forgot, you were all making sure the Tea Party Grandmothers were behaving...

I agree with nearly everything (maybe everything but I haven't read every statement) written in the article and in the comments. Whether the federal government likes it or not, the people (who are the states, by the way) illegal aliens crossing the border and entering the state is a foreign invasion that may be repelled by any action necessary, including taking up arms. For those that do not agree, read Article I, Section 10, the third clause.

Folks, it is an invasion and it is robbing us of our culture, our land, our rights. It is quite simply a war for the real America that government knows full well is going on, and every government and every quasi government are aiding and abetting the foreign invaders. That is treason, plain and simple.

Perhaps enough legislators in Arizona have sat down and studied the writings of the founders, the Declaration of Independence, and the Constitution that limits government to never interfering with the rights of the people, which include the right to defend themselves, their homes, their families, their friends, and the people forming the state from invaders. Let us hope the other states, meaning the people forming the states, do the same as Arizona and repel the invasion before all is lost to the scum directing that the borders remain open.

Substitute Banishment for all the other words and ......

What everyone is missing in the argument on Arizona alien law is the perspective.

Hello:

My name is Lawrence A. Oshanek and I live in Calgary, Alberta, Canada. I have been watching
the debate on Arizona and the issue of illegal immigration.

Now I know a wee bit about Canadian Constitutional law and I am not a scholar of the US Constitution,
but it seems to me that everyone debating the issue understands the position that foreign affairs is an
exclusive constitutionally granted Federal power and then argues that a power, not properly exercised
by the federal institutions can be somehow encroached upon by a state legislature.

Of course, that is not an objective position and the argument must fail because of it's subjectivity
since "not properly exercised" is in the eye of the beholder.

Were the argument between Arizona and Washington truly about foreign affairs that would end it all.
However, if the argument was framed this way:

1) Whereas the state is making no law concerning who may be legally admitted into the United
States, it is not exercising any powers over any foreign affairs policy matters and so it does
not encroach upon the head of an exclusive federal power.

Arizona is not deciding whom is legally admitted into the US .... the Federal state is clearly doing that
at all of the appropriate international borders and airports.

Here in Canada, we have a constitutional guarantee of mobility (that is we have amended our constitution
with the idea that mobility is an essential human freedom) and our courts have consistently ruled that
everyone in Canada is protected by the Constitution. But it is my understanding that the United States
Constitution has no such guarantee.

Yet, mobility (the freedom to move to where ever one wants to move within the United States to live or
work) has been given meaning only by several decisions in the United States Supreme Court (it is my
understanding that four key decisions of the USS Court constructed a de facto "right to mobility"
by linking mobility to notions of American citizenship).

2) Whereas there is no constitutional law granting the right of mobility to persons within
the United States excepting only their American citizenship, there remains a "right of
removal" to each and every state in the Union of persons who do not hold United
States citizenship and, after the proper exercise of due process, some who hold
citizenship may be legally banished.

That, "right of removal" (banishment) was a pre-existing right of each of the original 13 colonies
predating the the confederation of those colonies into the US of A and that "right of removal" was
maintained by each new state after confederation until ruled upon by the US Supreme Court who
tied citizen mobility to actual citizenship. Entire native populations were removed from states to
federal lands because of the state's "right-of-removal" or "banishment" of non-citizen powers.

Banishment is still occasionally used in US courts and it has a mixed history.

THEREFORE the State of Arizona has a "right of removal" or "banishment" of all persons
within that state who do not hold US citizenship.

Now, it seems to me that Arizona should argue the issue from that perspective rather then to get
sucked into a game of semantics about foreign policy since there are no foreign policy considerations
about who is actually within the state of Arizona and the removal of those persons is merely a local
matter under state control.

What do you think?

Lawrence A. Oshanek

One of the responsibilities imposed on Congress in Article 1, section 8 is "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions" and one could argue the point that Arizona is and has been invaded by a foreign power, especially after armed Mexican military have romped freely on U.S. soil in recent years, and after our Arizona citizens are being killed by the unidentified trespassing invaders.

Article 1, Section 10 also states: “No State shall, without the Consent of Congress, … or engage in war, unless actually invaded, or in such imminent Danger as will not admit delay.”

The Congress has already shown us that it will shirk its responsibility to protect our borders and enforce our laws, as has the Executive Branch under Bush and under Obama.

Going on, the Tenth Amendment defines the states as sovereign in all matters not defined in Article 1 Section 8 of the Constitution, to wit: “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.”

Having said all of this, if we are no longer a country based on law, and if we are, in fact, ruled by a tyrannical and lawless oligarchy (as appears evident at this time), then all bets on law enforcement are off, and we are just as likely to see the feds usurp the sovereign state police powers and simply open the borders. SCOTUS will do nothing except to support the federal usurpation, and the states will lose once again.

Two posts have suggested that the Constitution has not given the federal government the power to regulate the movement of people -- or perhaps of illegal immigration.

The evidence from the Founding that the regulation of commerce across political lines included the regulation of people is quite substantial -- and it has nothing to do with slavery. Without writing another article on the subject, i can summarize by saying that we know this from (1) contemporaneous dictionary definitions, (2) commercial regulations from the time (e.g., states and the Confederation Congress included travel restrictions when regulating Indian commerce), (3) the evolution of the Privileges and Immunities clause.

Mr. DiSimone: Regarding Jefferson's 1798 Kentucky resolution: Deductions of constitutional meaning from the writings of Jefferson (a political outlier who was in France during the principal Constitutional debates) are always risky. This is also true of any post-ratification writings, particularly those written during political battles. Quite apart from that, however, is the fact that most state legislatures addressing the issue formally passed resolutions expressly rejecting the Kentucky and Virginia resolutions.

It is always important -- both for us as for our opponents -- not to confuse what the Constitution actually means with what we may want it to mean.

Rob Natelson

In the bill itself, stopping someone and asking for ID is prohibited, unless there is a lawful reason for the stop. Whenever this occurs, the first thing that is asked for by the law officer is ID. If there is no ID forthcoming, or if there is reason to suspect that the person is an immigrant, then the green card is asked for. This is required by the bill, and there are protections in the bill against stops for "driving while Mexican." I am a naturalized citizen, in favor of immigration, and against ILLEGAL entry into my country.

And that goes for the Usurper in Chief. Where is his PROOF?

I disagree. What is it about illegal that you don't understand? These invaders do not belong here and should all go home. I'm tired of American taxpayers footing the bill for those who haven't put a dime into the system. Where do they get the right to march in favor of breaking our laws?

PART 2 of 2

This has been addressed previously in history and adopted by all States at the time. Thomas Jefferson made it pointedly clear in the Resolution of 1798. Please read it. Note the second resolution as follows (in part):

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 offenses against the law of nations, and no other crimes, whatsoever;

Upon reading the resolutions, it is pointedly clear: the Federal Government has no authority in this matter. The precedent is in place to substantiate it, and what more powerful precedent than one from an originator of our Declaration of Independence and Constitution themselves! Arizona is in complete accord with the Constitution as defined by the framers thereof.

Sincerely, Gino DiSimone Candidate, Governor of Nevada 2010 www.ginoforgov.com
775-544-2765

PART 1 OF 2...

Dear Robert Natelson,
I read your article entitled, "Immigration, Foreign Affairs and the Constitution" published in the Tenth Amendment Center online.

Specifically regarding Immigration, you are not correct. Here is why:

1. Legal immigration, very reasonably falls under naturalization as you describe. No problem here and I would agree with your post in all aspects.
2. Illegal immigration is not defined in the Constitution and thereby is absolutely a 10th Amendment right of the States. Your post alludes to the Federal Government potentially having some level of authority. This is absolutely incorrect!

Indeed, addressing illegal immigration, putting laws in place governing them, putting force in place to arrest them and protections against them, and any other measure towards them is the issue at hand (Arizona Immigration Law).
...see part 2...

I was just at a college reunion in Buffalo, when arriving at my room,I had to show PROOF! When I am pulled over for a traffic infraction the first thing they ask for is my PROOF! When I apply for a job, PROOF, When I appy for a license, PROOF! When I cross the Border legally........ thru customs......... to go to Canada, yes thats right, I HAVE TO SHOW PROOF! Why would any Citizen of this country DEBATE the rights of people here Illegally! They have no rights!

The best way to answer your question is to understand that at the time the united States Constitution was written the people understood the English language better. So one must examine the precise words written down. The constitution merely states “to establish uniform Rule of Naturalization, and uniform Laws on Bankruptcies throughout the United States”. Naturalization is defined (by Blacks law) “the process by which a person acquires nationality after birth and becomes entitled to the privileges of citizenship”.

The next key word to understand is person. Person is defined “a man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties to which it imposes” This term also includes artificial beings such as corporations.

One must also understand what the words “United States” means. The simplest definition for “United States” is a corporation.. With this understanding, one can see how the “United States” consists of the property of the corporation (buildings, airplanes, land, etc) and the persons who work for it (United States Senators, Representatives, military etc).

Now examine the first paragraph of the United States Constitution.
“We the people of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, and secure the blessing of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America”.

Here, we are introduced to the “United States of America”. which already existed under the Articles of Confederacy. The United States of America could best be defined as both the physical land and waters of the states and the people of each state.

Now we are getting somewhere in answering your question. Here the constitution is enabling the congress to “establish uniform Rule of Naturalization… throughout the United States” not to “establish a uniform Rule of Naturalization … throughout the United States of America”. In other words, it is completely improper for the federal government to be naturalizing a foreign person to one of the states. It is completely proper for the congress to naturalize a foreign person to the “United States”.

Also, carefully, examine the first paragraph of the constitution. Here it defines the scope of the federal government. Not only is the federal government delegated specific powers in the constitution, they are limited to only using those powers to fulfill the scope of the constitution.

You got that right Bill and also we need less communist leaders in Washington and more real Americans to lead this country the right way!!!!!! Leslie Howard -------- Indiana

My reading of the article is that the author believes a state has the power to act in this area of immigration as long as Congress doesn't act to fully preempt this area. The author does not state that Congress has so acted, so he implies AZ can act in this area. He then says that what the US Supreme Court will do is anybody's guess.

Sadly, that is not very helpful since that is ALWAYS the case. The USSC is unpredictable because they do not follow the literal language of the US Constitution.

What I am wondering is if the Federal Goverment fails to take acceptable action to resolve a situation such as immigration then doesn't Arizona or any other state have the constitutional right to make such a law?

My reading of the article would seem to say yes Arizona does have the right. Is this correct?

You really need to flesh out your argument about the 'congressional naturalization power.' Without a "necessary and proper" analysis, I don't see how you get there under the 'naturalization' specification in Art. I, sec. 8.

As for the definition of 'foreign commerce', even if that term included "people" at that time (because of slavery?), I suspect the 13th and 14th amendments might alter the original meaning of that term. Further, the argument that the movement of people is part of 'commerce' is thorny and not obvious at all.

As I said earlier, you give away far too much here. The article above is not persuasive that Congress has, at a minimum, concurrent power over all things that might have some impact on a foreign country. That sounds far too much like the ruling in Wickard v. Filburn.

I'll leave the preemption issues for another day...

Thank you for all your thoughtful comments to my post.

First, it is true that the Supremacy Clause applies only to actions of the federal government within the enumerated powers.

Second, legislating on immigration is within federal power both because of the congressional naturalization power and because of the power to regulate "Commerce with foreign Nations." The Founding-Era definition of "foreign Commerce" included the movement of people across national lines.

Third: Whether a federal naturalization or immigration statute preempts state law should be determined by construing the statute. What I object to is the assertion that states have no power at all in that area -- or simply assuming that a statute that does not clearly pre-empt the field prevents the states from acting.

My comments should be understood as the views of someone who is a constitutional historian, lawyer, and scholar, and who tries to read the Constitution and historical record as objectively as possible. I am not commenting on the merits or demerits of the AZ law.
Rob Natelson