Yearning to Breathe Free
The Constitution is Clear on Immigration
OCTOBER 01, 2009
Since October 2003, 104 people have died in the custody of U.S. Immigration and Customs Enforcement. Perhaps another thousand perished in the deserts of the American southwest while crossing into the United States without government permission. And who can forget the 14 refugees fleeing Cuba’s hell in a tiny rickety boat nine years ago? Only a little boy named Elian Gonzales and two others survived the voyage – but not life in America under Bill Clinton’s regime. His administration kidnapped Elian and remanded him to Castro’s clutches.
No question about it, the federal government’s immigration policy results in hundreds of deaths annually. And why not? Death and mayhem always result when the feds assume powers the Constitution never granted them, whether it’s the War on Drugs, the undeclared one on guns, or the battle against unauthorized migration.
Search the Preamble, all seven Articles, and 27 Amendments: You’ll find no authorization by which the federal government may control the movement of anyone into or out of the country. (The exception 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,” a euphemism for slaves and the slave trade.) Indeed, the document never mentions the words “immigration” or “immigrants” in the sense of voluntary movement. The framers knew the concept: The Constitution specifies that the president must be native-born and members of the House and Senate must have been citizens for seven and nine years, respectively. And Article I, Section 8 does allow Congress “To establish an uniform Rule of Naturalization.” But that’s a long way from authorizing a federal stranglehold on travel. The Constitution does not permit rulers to issue passports or visas, keep lists of visitors, police the country’s borders, or bar anyone, citizen or not, from coming and going.
Because they understood government’s lethal potential, the founding generation limited its role. Even so, they probably never thought to prohibit Leviathan from controlling immigrants simply because it seldom bothered to in their world.
The State occasionally meddled in migrations – the British government often dumped those criminals it didn’t hang on Australia and the New World; soldiers in earlier times would surround cities stricken with epidemics and shoot anyone trying to flee. But John Wilkes’s experience was far more usual. A radical member of Parliament whose rapier wit frequently skewered the King or his fellow legislators, Wilkes skipped across the English Channel to France when the House of Lords expelled him. No guards on either shore tried to prevent his travels. Ditto for the Marquis de Lafayette, who wished to enlist with the American revolutionaries in 1776, before France had formally pledged its support. When British spies told King Louis XVI of Lafayette’s plans, he promised to arrest him. Lafayette fled to Spain and, finally, America. He feared the royal agents chasing him, not officers on any of the borders he crossed.
This openness prevailed through the first century of our national existence. People came and went as they pleased, citizen or not. It wasn’t until the 1870s that this freedom died – and intriguingly, its murderers never once blamed the Constitution for their crime.
Instead, the Supreme Court invented a governmental “interest” in people’s movements when Californians began hiring Chinese immigrants rather than one another. The Court claimed it had to act when the Chinese “engage[d] in various mechanical pursuits and trades, and thus came in competition with our artisans and mechanics, as well as our laborers in the field.” Where the feds’ newfound “interest” had been hiding during the previous century is anyone’s guess. Nor do we know its origin, unlike that of our rights, which “their Creator” endows on all humankind and which include freedom of movement. The government’s interest apparently materializes out of thin air whenever the feds lust after unconstitutional prerogatives. (Among other interests, the Court found one during the 1960s in “safe” aviation. Hence, federal checkpoints, warrantless searches, high taxes, and grief now curse American airports just as they do the borders).
Sadly, Americans cry ever more loudly for Leviathan to increase its unconstitutional power. Yet each time we clamor for the feds to restrict foreigners’ movements, we tighten our own bonds. Among other evils, government charges us hundreds of dollars for passports and erects bureaucracies that consume billions of our taxes while harassing both citizens and foreigners. It’s building a wall to rival the one Berlin tore down and has even introduced a national ID.
Like the truth, the Constitution can set us free.