Constitutional Originalism and Immigration

by Bruce Webb

Something has been bugging me. Why is it that the same people that indignantly claim that a requirement for people to show proof of insurance is unconstitutional but that it is perfectly fine, nay imperative that people show proof of citizenship or legal residency? Exactly where in the Constitution does it give the Congress the right to control the border to start with?

Constitution of the United States

Neither in 1776 or 1789 were there barriers to visiting or working in the Colonies or the United States. And from what I see the power to determine who was a Citizen or not was left to the various States with the reservation in Article IV Sec 2 that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

There is a drive afoot led by Rand Paul and others to repeal that section of the 14th Amendment that provides that everyone born on American soil is as such a Citizen

1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.

Well okay, but that would seem to just restore the situation to the status quo ante in which time there were no controls, and certainly no federal controls on free migration into or between the United States.

My ancestors did not have papers. Some of them reached the US before there was a US while others came from Ireland and Germany in the 1820s and 1830s and as far as I can tell the only requirement for entry was the price of passage. In fact from what I can glean the first restrictions on immigration only came in the 1870s and 1880s and were initially focused on criminals and lunatics to which in the 1890s were added ‘Asiatics’ and then in the 1920s national quotas, the latter designed to keep the US from being flooded with people from Southern Europe.

Tea Partiers and allied groups claim NOTHING about their efforts is based on race, ALL is about returning to the Constitution as interpreted by the Founders. They equally claim that the ‘General Welfare’ clause in the Preamble and in Article II is not meant to be interpreted as giving Congress explicit powers and equally claim that Congress has greatly abused the Commerce Clause. Which leaves me this question. If you folks are so focused on Original Intent why NOT restore the immigration laws back to what they were in 1840? Because clearly you wouldn’t want to be accused of cherry picking the Constitution. Would you?

Consider this an open thread on immigration, originalism or anything related.

(P.S. Please keep clear the distinction between ‘naturalization’ and ‘immigration’. Clearly the States individually and the United States as a whole had powers to control who was a citizen, the question is what the Constitutional authority is to regulate residence by non-citizens whether from another country or another state.)