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.