Most people don’t know this, but the Constitution actually doesn’t grant any part of the Government the power to regulate immigration.
In 130 U.S. 581 (1889), the Supreme Court published this opinion:
The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of anyone.
The powers of government are delegated in trust to the United States, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations of private interest. The exercise of these public trusts is not the subject of barter or contract.130 U.S. 581 (1889), Supreme Court of the United States
The above argument essentially states that although the Constitution only gives the Congress the power to establish uniform rules of naturalization—not immigration—the United States obviously has those powers, as it is a sovereign nation.
This argument is shaky. The Federal Government does indeed have certain powers not enumerated in the Constitution, particularly:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.Article 1, Section 8, Clause 18, United States Constitution
To accomplish the enumerated powers and to support all other functions of government in exercising the powers granted by the Constitution, the Congress may produce any law necessary and proper. It may not assume new powers, and in fact this was explicitly proscribed:
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.10th Amendment to the United States Constitution
Taken together, it would seem States do not have the power to exclude people entry—that would infringe on a great many powers of the United States—and the Federal government has not been delegated such a power.
A Careful Reading
By a careful reading, we can argue the framers didn’t leave out immigration as an oversight, but rather that the above is by intent.
Consider first the unfortunate original wording of Article 1, Section 2, Clause 3:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.Article 1, Section 2, Clause 3, United States Constitution
The more-recent amendment corrects some of the defects:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.14th Amendment to the United States Constitution
In each case, certain persons not taxed are excluded—as if they are not subject to the jurisdiction of the United States, and thus cannot be taxed, and thus also are not citizens.
Immigrant laborers who come to the United States pay taxes, and are subject to the laws and jurisdiction of the United States. This is interesting, because the Constitution also covers who is definitely a Citizen:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.14th amendment to the United States Constitution
Any person born or naturalized in the United States must be subject to its jurisdiction; and in fact a person remains a United States Citizen if outside the United States for a time. The above reading seems awkward and redundant.
If we read this as that citizens are all persons born in the United States, and all persons naturalized in the United States, and all subject to its jurisdiction, it starts to make more sense.
A visitor to the United States is not a resident, and is a foreigner, to be sent away if the United States decides so; but if a person comes to the United States, settles here, and becomes a resident, then that person has declared themselves subject to the jurisdiction of the United States, to our laws and our justice, as they cannot be sent “home”—they are home.
The same clause says that these people are residents of the United States and of the State wherein they reside. A person can move to the next State and be a citizen of that State, and the State cannot stop this.
This raises questions about Article 1, Section 8, Clause 4:
To establish an uniform Rule of NaturalizationArticle 1, Section 8, Clause 4, United States Constitution
Obviously, we must ensure only citizens have the rights of citizenship: a visitor to the United States should not be granted the right to vote, but a resident has the right to vote.
No State may bar any citizen of the United States from voting in the State’s elections simply because they were a resident of the next State over; the moment you move to another State, you are a citizen of that State. This is an unsustainable and problematic requirement, except that the United States maintains a uniform rule of naturalization and can unambiguously provide that a person is recognized as a citizen, thus relieving the States of this burden.
A “uniform rule of naturalization” is distinct from a rule of discrimination among those seeking naturalization. It does not indicate that citizenship may be denied, but rather that a rule must be made to establish how citizenship is obtained. If such is the intent, then rules which may effectively deny citizenship are not the intent.
Finally, by an interaction between the Due Process Clause and the Equal Protection Clause of the Fifth and Fourteenth Amendments, it is impossible to produce two justice systems whereby immigrants are faced with different sentencing—such as deportation—not applicable to others:
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.14th amendment to the United States Constitution
If a person declares that they are subject to the laws and the jurisdiction of the United States, then they may only be faced with the same justice as any United States citizen.
The Right of Liberty
The very Declaration of Independence recognizes the fundamental, inalienable right of liberty:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.The Declaration of Independence
This concept of natural rights derives from Thomas Hobbes and John Locke, from the observation that without law and government we are all free to go anywhere, take anything, do anything, say anything.
Without government, we can all infringe upon the rights of others; thus we create government, entrusting by social contract some natural rights so as to protect others. We may not imprison, or tax, or otherwise deprive others of life, liberty, and property, except by the due process upon which we have all agreed.
Even Alexander Hamilton, urging caution in approaching immigration, held firmly that immigration is not to be denied:
By what has been said, it is not meant to contend for a total prohibition of the right of citizenship to strangers, nor even for the very long residence which is now a prerequisite to naturalization, and which of itself, goes far towards a denial of that privilege. The present law was merely a temporary measure adopted under peculiar circumstances and perhaps demands revision.
But there is a wide difference between closing the door altogether and throwing it entirely open; between a postponement of fourteen years and an immediate admission to all the rights of citizenship.
Some reasonable term ought to be allowed to enable aliens to get rid of foreign and acquire American attachments; to learn the principles and imbibe the spirit of our government; and to admit of at least a probability of their feeling a real interest in our affairs.The Examination Number VIII
Hamilton, in his strong urging against the dangers of foreign influence by mass immigration, argues strongly that fourteen years postponement is too long, and that all who come to be citizens must be given a reasonable and expedient path. As in Federalist #2, Hamilton argues that shared experience as Americans brings the unity of all Americans—even those of foreign birth—by great expedience.
Hamilton argues against granting citizenship to foreigners “the moment they put foot in our country,” while also declaring that they should at once be conferred some of the rights of Naturalization the moment they declare their solemn intent:
If the rights of Naturalization may be communicated by parts, and it is not perceived why they may not, those peculiar to the conducting of business and the acquisition of property, might with propriety be at once conferred, upon receiving proof, by certain prescribed solemnities, of their intention to become citizens; postponing all political privileges to the ultimate term.The Examination Number VIII
While Hamilton and Jefferson disagreed on this point—Jefferson arguing that a person was a full citizen with all rights the moment they appeared and declared citizenship—they both agreed firmly that any who come to this Nation to be citizens of the United States are citizens of the United States.
Interestingly, Hamilton’s argument that those rights “peculiar to the conducting of business and the acquisition of property, might with propriety be at once conferred” suggests that any who come here to rent or purchase home, to open shop, and to find jobs should at once be given such rights—and only argues the postponement of those political privileges such as the right to vote or to run for office.
It seems then that naturalization is a human right, and an inalienable right—being the right of liberty—and the above arguments on the reading of the Constitution make a great deal more sense than the arguments of the Court that the Constitution is simply wrong.