Anyways, where does it say that the importation and migration of people can be regulated AFTER 1808? You may be right that that particular section in article V might be just preventing the amendment procedure from interfering with that before the year 1808 but where does it say that you the importation and migration of people can be regulated after that?

P-King: The problem with supposing that Congress had no power over immigration is not just the language in Article I, Section 9, but also the grant of power over the law of nations. The international law treatises used at the time (specifically Vattel and Grotius) make it crystal clear that restrictions over immigration were part of the the law of nations.

Jeff Matthews: Note also that even before 1808, a limited federal power over immigration (imposition of a duty of up to $10 — a significant sum then) — was recognized. (Such an imposition would not necessarily qualify under the taxing power.) The power was clearly intended to "spring" into full effect in 1808.

B. Johnson: Regarding the Jefferson quote: Here are two relevant rules of constitutional interpretation: (1) statements issued AFTER ratification was complete (i.e., after May 29, 1790, when RI ratified) usually are not of much value in determining original meaning, particularly if issued in the middle of a political fight, and (2) Jefferson's statements of constitutional meaning are not particularly useful, since he was in Europe when the Constitution was drafted and approved. TJ was very often mistaken about the understanding reached when he was away.

The KY and VA resolutions make the point: They were issued in the midst of a huge partisan political battle, and all other states expressly or impliedly rejected them. Seven of the 13 other states even passed resolutions of condemnation.

“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, intituled “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.” –Thomas Jefferson, Draft of the Kentucky Resolutions – October 1798 http://avalon.law.yale.edu/18th_century/jeffken.a…

I understand that Jefferson was VP of the USA when he wrote the above paragraph, his stance that Congress doesn’t have power over “alien friends” seemingly reasonably synonymous with the idea that Congress has no power to regulate immigration, IMO. And if Jefferson was indeed talking about immigration, I understand that his stance that immigration is a state power issue actually helped him to be elected the 3rd president of the USA.

This would also emphasize the constitutional principle that Congress has only those specific powers which the states have expressly delegated to Congress via the Constitution, the power to regulate immigration clearly not one of those powers.

The fact that you had to add an amendment to the constitution to give the federal government that power says that it does not have that it in its present form since no amendment was ever added to it giving the federal government that power.

(Excerpts)

"That any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof, on application to any common law court of record, in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such court, that he is a person of good character, and taking the oath or affirmation prescribed by law, to support the Constitution of the United States, which oath or affirmation such court shall administer; and the clerk of such court shall record such application, and the proceedings thereon; and thereupon such person shall be considered as a citizen of the United States."

Looks like federal power was not intended to be exclusive. This should punch a big hole the federal government's case against Arizona.