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Did the Founders’ Constitution give Congress the power to restrict immigration?  Or was this a subject reserved to the states?

The question has come to the fore in recent months because of the controversy surrounding the Arizona immigration law.   My own search for the answer offers some important lessons about constitutional interpretation.

The Constitution, as readers of this website know, grants Congress only certain enumerated federal powers.  About half of these are found in Article I, Section 8, while the rest are scattered throughout other parts of the document.  Yet none of those powers explicitly mentions immigration.

This apparent silence has led some to suggest that immigration was left exclusively to state control.  However, the Founders gave primary control over foreign affairs to the federal government, and immigration (and emigration) was an important aspect of foreign affairs in the eighteenth century.   Also, Article I, Section 9, Clause 1, which prohibited Congress from prohibiting before 1808 the “Migration” of free people as well as “Importation” of slaves presupposed a congressional power to prohibit or restrict immigration after 1808.

But if Congress has power to regulate immigration, where in the Constitution was it granted?

Some writers have argued that it was part of Congress’s authority to “regulate Commerce with foreign Nations.”  For a while, I was misled into accepting this position.

As I thought about it more, I became troubled.  From reviewing hundreds of eighteenth-century sources, I had learned that “commerce” nearly always referred to the activities of merchants and certain closely-related activities.  These activities certainly encompassed travel for business purposes and travel by ship or other conveyance.  But constitutional scholar David Kopel pointed out to me that those activities did not include the fellow who hoofed it over the international border to live in the United States.  An immigrant of that description was not engaged in “commerce,” as the Constitution uses the word.

So I began another search to learn whether there was a federal power over immigration, and if so where it came from.  Eighteenth-century law provided the answer – not commercial law, but international law.

Article I, Section 8, Clause 10 of the Constitution granted power to Congress to “define and punish . . . Offences against the Law of Nations.”  I decided to dig more deeply into the eighteenth century legal sources to determine whether that might include authority over immigration.  Sure enough, it turns out that during the Founding Era, restrictions over immigration and emigration comprised a well-recognized branch of the “Law of Nations.”  In other words, Congress’s power to “define and punish . . . Offenses against the Law of Nations” included authority to “define” immigration rules and “punish” those who violated them.  An explanation appears in latest update of my book, The Original Constitution: What It Really Said and Meant .

Why is this constitutional detective story significant?  First, clarifies why the constitutional text assumes that after 1808 Congress could regulate “Migration” from foreign lands.  Second, it clarifies that Congress cannot use the interstate commerce power to bar non-commercial travel within the United States.  Third, it knocks one of the props out from under an argument that, however silly, is solemnly advanced by some “liberal” writers – that “commerce” included non-business travel, and therefore that “commerce” also included nearly all other human relationships.

Finally, this story underscores a point I explain for the layperson in The Original Constitution: When the Constitution is unclear, eighteenth century law offers us valuable trail marks toward the truth.

Rob Natelson, a leading scholar of the Founding Era, is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Golden, Colorado and Senior Fellow at the Goldwater Institute in Phoenix. He retired from the University of Montana earlier this year, where he taught Constitutional Law.

EDITOR’S NOTE: Joe Wolverton, II will be joining us as a featured speaker at Nullify Now! Chattanooga.  Get tickets here – http://www.nullifynow.com/chattanooga/ – or by calling 888-71-TICKETS

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On September 9, the United States Court of Appeals for the Third Circuit upheld the injunction against Hazleton, Pennsylvania’s Illegal Immigration Relief Act that was handed down by District Court Judge James Munley on July 26, 2007.

The Court of Appeals (and Judge Munley in his earlier decision) held that the Hazleton law was an unconstitutional encroachment into the area of immigration law that is exclusively within the purview of the government of the United States. That is to say, states have no authority to legislate with regard to the status of illegal immigrants living inside their sovereign borders.

The short-term effect of the decision is the temporary overturning of the Hazleton ordinance. The long-term effect, however, is much more deleterious to the continuation of the Republic established by the Constitution of the United States of America.

As reported in The New American, the Obama administration has perpetuated the myth of federal exclusivity in immigration law by filing suit against the sovereign state of Arizona seeking to enjoin enforcement of so-called S.B. 1070, the measure lawfully passed by the Arizona legislature and signed into law by Governor Jan Brewer.

No matter the accumulation of judicial decisions or federal lawsuits, the fact is that the Constitution of the United States nowhere grants the national government the exclusive authority to regulate matters of immigration.

The entire universe of powers delegated to the Congress of the United States is contained with Article I, Section 8 of the Constitution. Therein are enumerated the powers ceded by the states and the people to the national legislature. Not one of the roughly 20 powers listed authorizes Congress AT ALL, much less exclusively, to establish immigration policy.

The closest the Constitution comes to placing anything even incidentally related to immigration within the bailiwick of Congress is found in the clause of Article I, Section 8 that empowers Congress to “establish an uniform Rule of Naturalization.” That’s it. There is no other mention of immigration in the text of the Constitution. Somehow, though, the enemies of the right of states to govern themselves have extrapolated from that scant reference to “naturalization” the exclusive and unimpeachable right to legislate in the arena of immigration.

The difference between immigration and naturalization is one of definition. Immigration is the act of coming to a country of which one is not a native. Naturalization, however, is defined as the conference upon an alien of the rights and privileges of a citizen. It is difficult to understand how so many lawyers, judges, and legislators (most of whom are/were lawyers) can innocently confuse these two terms.

Before the states sent delegates to a convention in Philadelphia in 1787 to amend the Articles of Confederation (the result of which was the Constitution), they were already defending their sovereign borders by setting rules governing the means by which one could lawfully enter the state. That is to say, they were policing the immigration of aliens, an act undeniably within their right as a sovereign government.

On not one single occasion during that summer of 1787 did any one of the fifty-five (on and off) representatives of the 13 states suggest the endowment of the new national government with the authority to set immigration policy for the entire nation. That is significant. Not even the most strident advocate of a powerful national government ever proposed granting the power in question to the central authority.

In fact, the sole reference to the federal government’s power to regulate immigration is Article I, Section 9 wherein Constitution forbids Congress from interfering in the “migration or importation” of persons into the several states until 1808. That this limitation touched and concerned the slave trade and only the slave trade is patently obvious to anyone reading the debates of the delegates as recorded by James Madison and others who were present at the time. In fact, the wording of Article I, Section 9 is precisely worded so as not to be confused with any other article of the Constitution.

During the process of promulgating specific laws that were necessary and proper to carrying out the enumerated power of setting the rules of naturalization, several Congressmen descanted on the proper constitutional boundaries meant to encompass congressional action in this regard. Much of this relevant and valuable historical record was recounted in an article written by Vincent Gioia:

The exclusive authority to establish rules for naturalization was meant to guard against an improper mode of naturalization, rather than foreigners should be received upon easier terms than those adopted by the several States. [See CONGRESSIONAL DEBATES, Rule of Naturalization, Feb. 3rd, 1790, page 1148.]

During the debate about the Rules of Naturalization another representative, Representative White, noted the narrow limits of what “Naturalization” [the power granted to Congress] means, and he “doubted whether the constitution authorized Congress to say on what terms aliens or citizens should hold lands in the respective States; the power vested by the Constitution in Congress, respecting the subject now before the House, extend to nothing more than making a uniform rule of naturalization. After a person has once become a citizen, the power of congress ceases to operate upon him; the rights and privileges of citizens in the several States belong to those States; but a citizen of one State is entitled to all the privileges and immunities of the citizens in the several States…. All, therefore, that the House have to do on this subject, is to confine themselves to an uniform rule of naturalization and not to a general definition of what constitutes the rights of citizenship in the several States.” [see: Rule of Naturalization, Feb. 3rd, 1790, page 1152.]

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In the same debate still another representative, Representative Stone, concluded that the “laws and constitutions of the States, and the constitution of the United States; would trace out the steps by which they should acquire certain degrees of citizenship” [page 1156]. “Congress may point out a uniform rule of naturalization; but cannot say what shall be the effect of that naturalization, as it respects the particular States. Congress cannot say that foreigners, naturalized, under a general law, shall be entitled to privileges which the States withhold from native citizens.” [See: Rule of Naturalization, Feb. 3rd, 1790, pages 1156 and 1157.]

With all this in mind, it is a curious thing to consider how so many men and women trained in the law generally and in the interpretation of the Constitution specifically, could collectively misread the plain language of that charter. Surely they know that not a single pen stroke was made on that revered parchment ceding to Congress the power to control immigration. Not only does the federal government NOT have exclusive authority over immigration law, but the silence of the document itself on the matter, as well as the legislative history of the laws enacted to carry out the Constitution’s endowment of power, reveals that to a man our Founding Fathers intended for the states to retain the plenary power to police their own borders, including deciding who may or may not pass through them or reside within them.

Apart from his work as a journalist, Joe Wolverton, II is a professor of American Government at Chattanooga State and was a practicing attorney until 2009. He lives in Chattanooga, Tennessee with his wife, Sarah.  Since 2000, Joe has been a featured contributor to The New American magazine. Most recently, he has written a cover story article on the Tea Party movement, as well as a five-part series on the unconstitutionality of Obamacare.

This article originally appeared in The New American magazine – and is republished here with permission of the author

EDITOR’S NOTE: We are pleased to announce that former New Mexico Governor Gary Johnson will be joining us as a featured speaker at Nullify Now! on 10-10-10 in Orlando, Florida. Click here for more information and to reserve tickets now. (for additional tour stops, visit http://www.nullifynow.com)

As the governor of New Mexico, I spent eight years dealing with issues unique and specific to our state – addressing immigration, education, the privatization of our prison system, ways to streamline state agencies, and keeping our spending under control. During those eight years, we proved that, with a little common sense and by embracing the reality that government is not the answer to every question, spending can be controlled, bureaucracy can be reduced, and individuals can manage their own lives.

Last December, after growing not just alarmed, but angry at the direction of the current government in Washington, we launched the OUR America Initiative to help give voice to those same ideas I put to work in New Mexico. Since then I’ve been traveling around the country, visiting a total of 23 states so far.

During these travels, I’ve realized more than ever that not only are Americans ready for a very different direction, but that each of the 50 states must deal with its own unique set of challenges, needs and priorities.

As a nation, we’ve been hearing a lot about states’ rights lately, particularly in the context of Arizona’s immigration reform law, and the Obama administration’s very bad decision to challenge that state law in court.

I have said that I would not have signed the Arizona immigration law, because I’m concerned it could lead to racial profiling. But, having served as governor of another border state, New Mexico, I empathize with Arizona’s frustration, and absolutely support the prerogative of that state’s officials to act. Think about it: Congress and the federal government have failed, due to political cowardice, to do anything meaningful about immigration reform; yet when a desperate border state does decide to do something, the feds go running into court claiming that Arizona is trying to usurp their authority.

The situation in Arizona is a crystallizing example of how the federal government has taken the very limited authority granted it by the Constitution and expanded that authority to make a mockery of states’ rights and primacy.

How many times have we heard in the weeks since the Arizona law was enacted that “Immigration is a federal issue?” Certainly, securing our border and managing the flow of people across that border is an appropriate federal role – consistent with the Constitution. But, where is it written in the founding documents that a state doesn’t have the right to enact its own laws and policies relating to immigrants, both legal and illegal, who choose to enter and reside in that state?

I would suggest that just the opposite is true. Every state is different, and is presented with its own challenges and opportunities related to immigration – and countless other issues. Rather than trying, as the Obama administration is doing, to stop Arizona from implementing its own approach, we should be encouraging the states to be the policy laboratories they were intended to be in our federal system.

Arizona feels it needs to enact state law to deal with illegal immigrants. Similarly, farmers in a state like Iowa need a guest worker program that actually meets their needs for reliable, economical and legal seasonal labor. Each state needs a system where willing employers and willing immigrant workers can connect in a practical, realistic and most importantly, legal, way. And if Congress lacks the courage to enact that kind of system, why shouldn’t state legislators be free to come up with policies that serve their unique needs? That is what state primacy and federalism are all about, and should be encouraged – not punished — by an overreaching federal government.

Immigration is the issue that is right in front of us today, but it is just the tip of the states’ rights iceberg. Education, welfare, health care, drug policy: These are just a few of the issues that have been slowly but surely usurped by the feds – with no real basis in the Constitution or the clear intent of the Founders.

As the Honorary Chairman of the Our America Initiative, challenging these federal power grabs is one of my highest priorities. Someone needs to ask the obvious questions about why the federal government insists on doing so much, spending so much, and attempting to ultimately control so many local issues.

We can see where their approach has gotten us: borrowing 43 cents of every dollar the government spends, with no end in sight.

The time has never been better for a long-overdue reassessment of the balance of power between the federal government and the 50 individual states. If it takes a controversial Arizona immigration law, or an insane federal takeover of health care to bring this debate to a head, so be it. Let’s have this debate and let common sense – and genuine states’ rights – prevail.

Gary Johnson is the honorary chairman of the OUR America Initiative (www.ouramericainitiative.com) and the former Republican governor of New Mexico (1994-2002).

Is the Immigration Bill Unconstitutional?

Many “progressive” opponents of the Arizona immigration law are arguing that the law is unconstitutional because foreign affairs is exclusively the province of the federal government.

That foreign affairs is exclusively the province of the federal government is commonly asserted. But it is a myth – at least if one respects the Constitution’s text and original understanding.

Before explaining why, I have to say that a claim that the Constitution reserves powers exclusively for one level of government is an unusual argument for “progressives” to make. In general, of course, the most vocal “progressives” could care less about what responsibilities the Constitution assigns to what levels of government.

It’s not just that they favor the federal government invading the sphere that the Constitution reserves to the states. It’s also that they have repeatedly urged state and local governments to invade the supposedly exclusive sphere of the federal government. Remember all those campaigns for state and local governments to adopt nuclear-freeze resolutions, South Africa boycotts, and nuclear-free zones?

Anyway, let’s move beyond the limitless subject of political hypocrisy to describe just how the Constitution does distribute foreign affairs authority.

First, the Constitution gives the federal government supreme authority over foreign policy. Congress and the President can pre-empt an issue by exercising one or more of their enumerated powers. If Congress dislikes a state action in that realm, Congress can pass a law overriding it.

If, however, Congress has not acted or acted incompletely, the states have certain reserved powers to act on their own. In other words, the Constitution acknowledges concurrent, although subordinate, state authority over foreign affairs – including immigration.

How do we know this? From both the constitutional text and from the record left by those who debated and ratified the Constitution. Here is the evidence:

* Instead of simply stating that states have no foreign affairs powers, the Constitution (Article I, Section 10) only lists a few specific foreign affairs powers denied to the states. For example, a state may not make a treaty or enter into a confederation with a foreign government.

* Under a rule of interpretation widely recognized by the Founders, the Constitution’s listing implies that all foreign affairs powers not denied remain with the states (subject to veto by federal law or treaty).

* In addition to prohibiting the states from exercising a few foreign affairs powers, the Constitution lists a few others subject to congressional pre-approval – such as the power to make non-treaty compacts with foreign governments. If foreign policy power were exclusively in the federal government, the Constitution would not recognize that states had any ability to enter compacts with foreign governments.

* Nowhere does the Constitution include language such as “all state authority over foreign relations is hereby abolished.” On the contrary, at several points the document assumes some state authority over the subject is retained. For example, the Constitution explicitly acknowledges state power to tax foreign goods to fund inspection programs. It elsewhere assumes that if Congress chooses not to adopt a “uniform Rule of Naturalization,” the states may adopt their own laws.

* The historical record confirms what the text suggests. For example, the records of the Constitutional Convention tell us that the delegates considered whether states could impose embargoes on foreign goods, and deliberately decided to leave that power with the states. A committee of the First Federal Congress recognized this power also.

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. This occurs primarily in the area of commerce and foreign affairs, and appears to be driven in part by the historically-false claim that federal power in those areas is exclusive.

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.

Rob Natelson is Professor of Constitutional Law at the University of Montana and a nationally-known expert on the American Founding. After a quarter of a century in academia, he is leaving this year to fight full-time for freedom as a Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Golden, Colorado. His constitutional publications can be found at www.umt.edu/law/faculty/natelson.htm. The views expressed here are his own, not to be attributed to any organization or institution.

Over the last couple days, I’ve received a number of emails about Arizona’s new immigration law – and thought it was worthy of some constitutional consideration.

To start – we must keep adherence to the 10th Amendment as a top priority. This means that the federal government is authorized to exercise only those powers that we the people of the several states delegated to it in the Constitution…and nothing more. These are often called the enumerated powers.

Article I, Section 8, Clause 4 of the Constitution empowers Congress to “establish an uniform Rule of Naturalization” – or, more simply stated, to make universal rules about giving foreign-born residents of the United States the “privileges of native” born residents.

The most important thing to consider at this point are the words “immigration” and “naturalization” themselves. While most of us would consider them strongly related, we have to keep in mind that in any 18th Century law dictionary, they would have been seen as two wholly different words, with two separate meanings.

And, if like any legal document, the words of the Constitution mean the exact same thing today as they meant the moment it was signed (barring amendments, of course), it’s imperative that we understand the meanings of such words at the time of the founding.

For example, a common 18th century definition of naturalization was “The act of investing aliens with the privileges of native subjects”, while emigrate had a common meaning of “to move from one place to another.”

Such a delegated power over “naturalization” then, does not specifically address the power over immigration rules in any way. But, Constitutionally-speaking, one also has to then consider the common law doctrine of principles and incidents (i.e. the necessary and proper clause) to find authorization for anything not spelled out in the constitution.

I have yet to hear a convincing argument that control over who can and cannot cross a border was considered by the Founders to be an incidental (lesser and directly required) power related to the delegated power over naturalization.

But, I’m sure someone will try to make one eventually. And yes, I’m all ears! Otherwise, such power is something retained by the people of the several states to be dealt with by their state governments or not – as they see fit.

If this analysis is correct, then Arizona’s new immigration law would be acceptable under the federal constitution. It would then need to be scrutinized for compliance under the Arizona State Constitution (which I have heard almost no mention of in this debate).

At the same time, if my state of California (or any other state for that matter) were to then pass a law allowing more immigration than what Arizona or D.C. or anyone else has allowed, this would also be acceptable under the Constitution – and then would need to be scrutinized for compliance under the State Constitution of that state.

Such “marketplace competition” between states would certainly allow us to see which policy worked best, not only for the economy, but for the amount of freedom vs restriction that people want in their lives. That’s the system that was set up by the founders and ratifiers under the Constitution. It’s called federalism.

The key, of course, would be to remove any federal funding of social programs for people who weren’t “naturalized” under the rules of the federal government. (discussions on the constitutionality of those programs aside for the time being) States, however, could enact their own social programs should they choose – or none at all.

There is one other extremely important point in all this – just because something is “constitutional” does not mean it’s good policy.

Michael Boldin [send him email] is the founder of the Tenth Amendment Center

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

It has been over 6 years since the atrocities of September 11 were committed and there are still some very basic measures that need to be taken to bring the perpetrators to justice and make America  safer.  I have proposed legislation to help with these efforts and will continue to fight in Congress for the safety and security of the American people.

My legislation entitled The Marque and Reprisal Act of 2007 (HR 3216) makes the surgical strike option available to the President in our mission to capture Bin Laden.  Our military has been pursuing him without result for far too long now, and it is high time ALL constitutional tools were utilized in the hunt for this dangerous madman.

As an American it sickens me to know that Bin Laden and top leaders of al Qaeda remain at large and thumbing their noses at us, while we unravel the sacred fabric of our constitution out of fear.  It is Osama Bin Laden and the perpetrators of terrorist attacks that ought to be afraid of us, not the other way around.  The answers are found in the Constitution.  We should boldly root out the perpetrators and not let them get away with their crimes against us.  As the home of the brave we should use Letters of Marque and Reprisal to bring Bin Laden to justice.

Also, we need to take serious steps to prevent terrorists from gaining easy access to targets on our soil.  Quite alarmingly, even with the knowledge that the 19 terrorist hijackers entered our country legally, and that 15 of them were from Saudi Arabia , student visas from terrorist sponsoring countries are still far too easily obtained.  In a baffling move President Bush struck a deal with Saudi King Abdullah in 2005 to allow 21,000 more Saudi young men into the US on student Visas.

Of course, not all students from terror sponsoring countries are terrorists, but I place a higher premium on the security of the American people than the convenience of citizens of hostile countries.  We should not be making the goals of would-be terrorists easier to accomplish, but rather should be vigilant about defending against enemies at every turn.

They should not be slipping through our doors so easily, using our immigration laws against us, and that is why I proposed the Terror Immigration Elimination Act (HR 3217) to toughen standards for VISAS from countries on the State Department’s list of terrorist sponsoring countries in addition to Saudi Arabia .  Just as you decide who to invite to a dinner party in your home, we should be in charge of who we allow in this country, without apology.

A lot has been done to fight the War on Terror and much of it has been misdirected, but there are some tools still needed and more progress to be made.  My bills The Marque and Reprisal Act of 2007 and The Terror Immigration Elimination Act are logical steps in the right direction.