Immigration

Immigration and the Constitution

The Constitution does not delegate to the federal government power over immigration, only over naturalization.

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jvoves/Flickr

The tone of the debate over the nation's immigration laws has taken an ugly turn as some office-seekers offer solutions to problems that don't exist. 

The natural rights of all persons consist of areas of human behavior for which we do not need and will not accept the need for a government permission slip. We all expect that the government will leave us alone when we think, speak, publish, worship, defend ourselves, enter our homes, choose our mates, or travel. The list of natural rights is endless.

We expect this not because we are Americans, but because we are persons and these rights are integral to our nature. We expect this in America because the Constitution was written to restrain the government from interfering with natural rights.

When these first principles are violated to advance a political cause or to quell public fear, those whose rights are violated because of an immutable characteristic of birth, not because of personal culpability, become the victims of ugly public indifference or official government repression. The American history of government treatment of Africans and their offspring and the European history of government treatment of the Jewish people are poignant and terrible examples of this.

Today, the potential victims of public indifference and government repression are Hispanics in America. Hispanics here without documentation are being demonized because of the politics of nativism. Nativism—we are exceptional; we are better people than they are; we were here first—is very dangerous and leads to ugly results.

The Declaration of Independence and the Constitution underscore the truism that all persons have the same natural rights, irrespective of where their mothers were when they delivered them.

The right to travel is a natural right, even though it was not until 1969 that the Supreme Court recognized it as such. The court protects natural rights by imposing a very high bar for the government to meet before it can interfere with them, absent due process.

The high bar is called strict scrutiny. It requires that the government demonstrate an articulated area of jurisdiction and a compelling state interest served by the least restrictive alternative before it can treat a person differently or uniquely because of his or her place of birth. A compelling state interest is one that is necessary to preserve life or the state's existence, and it must be addressed using the least force and causing the least interference with personal liberty possible. This test was written so as to give the government wiggle room in a crisis and to make it intentionally difficult—nearly impossible—to write laws that apply only to discrete groups when membership in them is determined by birth.

But the Constitution itself—from which all federal powers derive—does not delegate to the federal government power over immigration, only over naturalization. Thus, when the government's motivation for enacting immigration laws is to further genuine compelling foreign policy goals, the laws will be upheld. But when the government's motivation is nativism or fear or hatred or favoritism, strict scrutiny will operate to defeat those laws.

Shortly after the first federal immigration statute was enacted in the 1880s—the Chinese Exclusion Act—the Supreme Court ruled that aliens, whether here legally or illegally, are persons, and the Constitution protects all persons from governmental deprivation of life, liberty and property without due process.

In the same era, the court held that all babies born here of alien mothers are citizens.

The Fourteenth Amendment requires this, and its language is inclusive: "All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States…" Though written to protect former slaves, its language is not limited to them.

Some well-intended folks have argued that the language "all persons" doesn't really mean "all" because it is modified by "and subject to the jurisdiction (of the United States)." But that language refers to the offspring of mothers who, though here, are still subject to a foreign government—like foreign diplomats, agents or military. It does not refer to those fleeing foreign governments. It does not—and cannot—impose an intent requirement upon infants.

My guess is that nearly "all persons" reading this are beneficiaries of this clause because they—you—were born here.

When the history of our times is written, it might relate that the majority repressed the rights of minorities by demonizing them using appeals to group prejudice—by blaming entire ethnic groups for the criminal behavior of some few members of those groups. That history might reflect that this was done for short-term political gain. If that happens, it will have changed America far more radically and dangerously than any wave of undocumented immigrants did. And that would be profoundly and perhaps irreparably un-American

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  1. The court protects natural rights by imposing a very high bar for the government to meet before it can interfere with them, absent due process.

    And that high bar is drug involvement.

  2. Quite possibly one of the Judges best articles.

    1. Can you find a bad article by the Judge? I can’t. They are all heads above the competition.

    2. It is pretty weak. He wouldn’t even call immigration law unconstitutional and upheld judicial scrutiny as valid instead of pure bullshit.

  3. A compelling state interest is one that is necessary to preserve life or the state’s existence

    If that definition of compelling interest was actually used it wouldn’t be so bad. The working definition actually seems to be “something a SC Justice thinks is good”.

    1. I would also add the word “temporary”

  4. natural rights … consist … of human behavior for which we … will not accept the need for a government permission slip.

    The right to travel is a natural right

    And, migration within and between nations, is a natural right.

    What is not natural is to expect to be supported financially, housed, fed, provided with health care or vacations trips to the moon on someone else’s nickel. Or to have someone less qualified, less willing to work, and who demands a greater salary, be able to claim their “right” to a job just because they happened to be born on one side rather than the other of some line on a map.

    1. I really do understand the welfare argument and I think it raises really important points.

      The problem I have with the argument is that IF someone says immigration is a natural right, but that it can be restricted on the basis of a large welfare state, then what stops us from restricting poor people’s natural right to give birth based on the availability of welfare?

      1. Immigration in the sense of movement into a country is a natural right. There is no natural right to citizenship. Uncitizen immigrants have no right to the benefits of citizenship. At the same time, the right to freely contract with others is not a benefit conferred by citizenship, but a natural right of any person by virtue of his character as a moral agent; so, restriction based on citizenship is unsupportable. We only run into trouble because of absurdities such as public schools and truancy laws: one can’t very well require that the children of uncitizen immigrants be interred in schools till a certain age and at the same time deny them use of the public schools (for which they are likely paying taxes at the same time); but that kind of thing is fucked up in any case.

        1. Public schools in California are horrible, what do you think is one of our 2 major problems?
          U
          1) Unions: No merit pay; tenure for horrible teachers
          2) ?

          1. that’s easy, and it’s just one problem:

            Public Skools!

      2. I tell you what we do. First, let’s kill off the welfare state.

        1. How about we kill it by overloading it.

    2. The problem is not immigration. It’s the welfare state.

      1. +1

      2. the aye’s have it!

    3. the welfare state has always been the problem. that is why it always strikes me as odd that those who want to increase the welfare state also want to be lax on immigration, while those who want to cut welfare also want to stop immigrants.

      it is a logical paradox… because the welfare state would be easier to maintain if you kept new people from entering it, and immigration would be far less negative in its impacts if you reduced the welfare incentives. if i was struggling to survive in a third world country, and i herd of this place where i could get my kids free education, healthcare, and money for food… seems like a no brainner. if it is just a place with great opportunity… but you will have to work for it… then you attract a much higher caliber of immigrant.

      1. “… while those who want to cut welfare also want to stop immigrants.”

        The Trumpkins, and most of “the conservative base”, don’t want to cut welfare. They want to keep their Social Security and Medicare because “we paid for it” etc.

        That is why the Republican party never got serious about cutting spending and limited government. America now has the same political dynamic as any other declining welfare state.

        I had a long back and forth with a Trumpkin on another site, hitting him with all the ways in which Trump is not a “conservative” – single payer healthcare etc. – and that a New Yorker choosing Mobile, Alabama for his big rally is probably a troll.

        His final short response a day later on a dead thread:

        ‘I want the wall. I will overlook a lot of other things to get it.’

        “… the welfare state would be easier to maintain if you kept new people from entering it …”

        The left believe we need more tax-paying peasants to maintain the welfare state. The right believe immigrants are stealing their jobs, benefits and entitlements.

        Within stagnant zero-sum government-run welfare state economies, both are probably true, making the debate an endless source of fun and electoral exploitation for both sides.

      2. nobody comes here for the welfare benefits. 99% of the draw is from the natural born whites.

    4. I agree. What happened to “taxation without representation”? How do millions of illegals get benefits of my tax dollars yet I am not “represented” in every state that does not uphold current immigration law by detaining, incarcerating, and deporting them. I should get to vote in every state that has a sanctuary city.

      1. because you don’t have any tax dollars. there are precisely zero net collections at any level. just burdens, many self-inflicted. you love the misery admit it!

        now here’s a question: how is any State going to “uphold” federal laws that only have to do with border crossing? If the States want to pass laws about foreigners, they might try by starting, ever.

        The whole problem is you have no idea what you’re talking about, and no one else does either.

  5. I said this same thing on here many months ago. No h/t, Judge?

  6. Almost 200 years ago, the Mexican government encourage Americans to immigrate to what was then northern eastern part of Mexico to help them deal with the raiding Comanches. The new settlers did not learn speak Spanish or adopt Mexican customs. They had their own little communities. Because they didn’t have the new settlers assimilate, they eventually seceded formed the country of Texas. Any Mexican minorities living, there regardless of if they want to or not,would be governed by people that didn’t care about Mexican customs or ideals.
    To put it simply, culture matters. If we take in people who don’t want to assimilates, people who aren’t interested in even a basic ideal of liberty, then what happen with Texas can happen again.
    As a libertarian, I do want to live in a world where people can move anywhere they please, where locals have no need to fear of having their liberties trampled on by newcomers or of them bringing in exotic, contagious diseases, but I don’t live in that world.

    1. north eastern***

    2. Perfectly said. You have to switch it around to white people being the invaders before you can break through the cognitive dissonance.

    3. Excellent. Well-said.

    4. Errrr…..no.

      In 1824 Mexico adopted a Constitution very similar to the U. S. Constitution. It also passed legislation that encouraged immigration by giving land to settlers who, after living on it for 20 years, would legally own the land. It also made them Mexican citizens btw….very important. General Antonio Lopez de Santa Ana however violated this agreement and began taking land from settlers in the early 1830’s….even from ethnically Mexican citizens. Hence the formation of those led by Colonel Zavalla, and the “Zavalla flag”, who fought for Texas independence.

      The Alamo flag was the Mexican flag with the year 1824 on it. They were happy to remain Mexican citizens…..if Santa Ana followed the Constitution. He didn’t.

      I should get paid for this……

      1. “I should get paid for this……”

        No, not really.

        “In 1824 Mexico adopted a Constitution very similar to the U. S. Constitution.”.
        Except for the part about the right to bear arms and and jury trial. Immigrants were required to convert to Catholicism so no freedom of religion. These were some of the grievances the settlers and native mexicans had with the mexican government at the time. The settlers and natives also resented being ruled and taxed by what they saw as separate entity since geography and culture separated Texas and Coahuila from the rest of mexico. The settlers and natives didn’t have strong cultural ties to mexico. Texas was a faraway outpost of mexico with it’s own culture . There is something to be said about the importance of culture to a country, without a cultural identity there is no country.

        1. And except for the part about slavery being a legal institution…

        2. Benito Juarez wanted to model the Mexican government on the American Constitution but he didn’t live long enough to do it. The Constitution of 1857 had the right to bear arms listed. He also favored free trade and the rule of law. He was a truly great leader.

    5. Do you really want to live in a world where there is an ideological test for immigrants? Libertarians are typically skeptical of government power, but you want to give the government the power to decide who can and cannot come here based on political ideology? Do you honestly think that power would be used to help the cause of liberty?

      Liberty requires courage. If you let people live the way they please, some are going to live in a way that may be actively hostile to libertarian ideals. If we start to say, “We can exclude or control those people” then we are no longer libertarians.

      It’s really no different than standing firm against things like NSA spying or the worst provisions of the Patriot Act. Yes, some of those things could theoretically help stop a terrorist attack and save lives. But a people that would sacrifice liberty for security….

      Personally, I find the fear of a takeover of people coming from socialist countries to be overblown. But if it worries you, the best way to counter it is to welcome those people, help them assimilate, and teach them the value of liberty. And yes, we might fail. But the alternative is to turn our back on the thing we claim to value above all else.

      1. This, a thousand times.

        I said something similar below.

      2. But building a wall is so much easier. /Merkin’

      3. I endorse this message.

        If there’s a libertarian ideological test for being American, I imagine it’d probably be kicking out native-born Americans at a steady clip. Of course, if we had an ideological test for residence, then libertarians are way more likely to be the victims than the beneficiaries of it.

        1. You are a fucking idiot.

          1. Make an argument for that position.

      4. All immigrants are screened for ideology. If they are communists or religious fanatics absolutely dedicated to the death penalty for competing views (christians for moslems, moslems for christians and both for shamans) they are welcomed. Anyone suspected of shamanism (e.g. one marijuana seed…) is branded a criminal (not an ideologue) and excluded. Just before Herbert Hoover was sworn in, Amerindians were forcibly purged of peyote cerimonies. All deviations from the ordered liberty under the Methodist White Terror are classed as “moral turpitude” for immigration purposes, not as ideology. This same branding ceremony is exported so as to keep Americans from emigrating to other countries.

      5. Liberty requires courage. If you let people live the way they please, some are going to live in a way that may be actively hostile to libertarian ideals. If we start to say, “We can exclude or control those people” then we are no longer libertarians.

        There you have it, libertarianism is a suicide pact!

        1. You can still defend your rights and expect a just government to do so on your behalf.

          But unless you want to become thought police, you have to accept that some people are going reject libertarianism.

          1. How does a just libertarian government go about defending your rights from people who reject libertarian government?

            Don’t you have to, at some point, control and exclude those people?

            What happens when they become a majority and start enacting non-libertarian laws?

            1. That’s because democracy with universal suffrage is at it’s core, incompatible with any kind of sustainable system of liberty.

            2. By rejecting libertarianism I meant not holding libertarian beliefs, speaking out against libertarianism. That doesn’t violate my rights.

              You control and exclude people when they violate your rights, not when they think thoughts you disagree with.

              What happens when they become a majority and start enacting non-libertarian laws?

              Then your libertarian project starts to fall apart. Welcome to reality, where philosophy and constitutions and reason don’t mean a damn unless enough people are willing to actually give them weight of action. There is absolutely no way to change that, and it’s not unique to libertarianism.

              But if your libertarian project involved kicking people out who don’t think the way you want them to, then it was never a libertarian project to begin with.

              1. I’d rather have a nation that serves my interests than lose my nation because of ideological purity. I’m only for libertarianism as far as it maximize the freedoms of the existing population. Once it become a suicide pact where we have to accept in everyone and watch while they tear things down, I’m off the bandwagon.

                If that makes me not a libertarian, so be it.

                If I know before they enter the country that they’re unlikely to support libertarian principles, then why let them in, in the first place? If they’re poor, uneducated and come from nations with a collectivist history, they’re poor risks and I am surely going to profile. A government’s first job is to protect the interests of its citzens, not the entire global population.

                1. They flee their countries because they hate the way they are run, therefore they aren’t likely to want to enact their old policies in their new home. The only reason immigrants flock to the Democratic party once they’re in the US is because the Democrats aren’t the ones treating them like absolute shit. I mean, if you showed some of the comments on here to a new arrival in the US, I doubt he would be very tempted to be a libertarian himself.

                  1. therefore they aren’t likely to want to enact their old policies in their new home

                    That’s utterly naive, and refuted by virtually every example of regime change in those countries. People within a nation constantly replace unpopular governments with ones with similar policies.

                    For a slightly more benign version, ask people in Western states, especially Coloradans, what they think about Californian immigrants who flee their state’s toxic policies then want to implement exactly the same policies in their new states.

                    The Republican party does not “treat immigrants like absolute shit.” You’re reciting Democratic Party talking points. It simply expects them to be productive members of society.

              2. To add, “not letting them enter in the first place” is neither equivalent to nor a slippery slope to “kicking out people who don’t agree with you.”

              3. No. It just focuses all legal effort on harm. You can be socialist or Nazi all you want but if you harm someone you will pay. These people exist and they are winning, not because they are immigrants, but they are the descendants of immigrants. Immigrants are fans of freedom. It is the Americans that is the problem

                1. Simply factually wrong based on voting patterns and crime statistics.

    6. ” Because they didn’t have the new settlers assimilate, they eventually seceded formed the country of Texas. ”

      Perhaps their alienation made it easier for them, but it wasn’t the cause of it. It was in reaction to the excesses of the Mexican state. At the root, it was a move for freedom, and so if alienation makes that kind of thing easier, it ought to be encouraged, not decried. Even a child knows this.

      1. You’re missing the point. It was a good thing for the non-Mexican immigrants. For the original Mexican residents of the territory, not so much.

        Southern California and New Mexicon seceding from the U.S. and possibly rejoining Mexico may be an awesome deal for the Mexican immigrants and Mexico. For the white natives, not so much.

        A nation that does not control its borders ceases to serve its citizens and soon ceases to be a nation. That is not theory. That is history.

        1. You have not once substantiated the claim that the original Mexican inhabitants were worse off for separation. Indeed, given that they otherwise would have lived in despotism, it seems the opposite is true.

          1. It’s really not a question of whether they were actually better off. We know things in hindsight that someone in early 19th century Texas was unlikely to have been able to predict, not only given the lack of ability to predict the future but given the severe limitations in information distribution of the age.

            What’s more salient is that the Texas Revolution was started and driven by white immigrants. The native Mexicans were along for the ride, whether they supported it, or opposed it.

            It is the fact that mass immigration caused the natives to have a lack of control over their own destiny that’s important rather than the fact that it all worked out OK in the end — whether any particular social upheaval or revolution is likely to work out well is a crap shoot.

            I realize I said that the revolution didn’t work out so well for the non-Mexican immigrants, and I will walk that back partially. While Texas was and is, overall, a better place to live than in Mexico, it was a nation and then a state run by and for the interests of the white majority. So, in a sense, it didn’t work out for the Texas Mexicans because they lost the ability to have a nation of their own choice in their own character — regardless of whether they would have made better or worse choices than the white majority in doing so.

            There’s a saying that people would rather be badly governed by their own kind than competently ruled by foreigners. That motivated a lot of anti-colonial sentiment worldwide.

        2. Many of the Spanish speaking residents of Texas supported the rebellion. It was called “Zavalla’s Flag”, not Houston’s. Or Juan Seguin. Many Anglos named their children “Seguin” in his honor.

        3. So just stop pretending to be a libertarian then. Libertarians believe in freedom for everyone not just for some.

          1. I believe in freedom for everyone. They have my encouragement to pursue it in their own country. I wish them well.

    7. Then you aren’t a libertarian. You don’t live in our world yet.

    8. why on earth would you care is some parts of the United States did secede?

  7. What a load of crap.

    It’s so disappointing to me that Judge Napolitano is in the wing of the Libertarian party that lives in its parents basement, has no idea how people actually act and thinks the right of the existing citizens of a nation to control their nation’s border is a shocking infringement on natural rights. This is a teenage boy’s understanding of Libertarianism.

    1. So, if a person approaches you, and offers to mow your lawn for a reasonable price, you like the idea of the government inserting itself into your private, consensual interaction? You don’t mind being labeled a criminal because you didn’t ask that person for her papers?

      That is a restriction on your natural right of association. You support a police state in order to expel the “undesirables”. You want to give an out of control federal government even more broad and sweeping powers. I think you won’t like what you get.

      BTW, you know the difference between being in the Libertarian Party and being a libertarian, right?

      1. Restricting movement across the border is really a diversionary issue. Ultimately it’s a matter of the state telling the sovereign citizen with whom he may associate, with whom he may trade, and what transactions he may entertain. In short, it is the treating of natural citizens as creatures of the state, bound to subject themselves to being implements of the will of their rulers, and the reduction of property to a very limitted sort of trusteeship. Essentially, it’s a regression to the state of English rule before the Disagreement.

      2. Ah, yes, your spiffy rhetorical method of building a huge pile of distorted bullshit from what the person actually said. Then I’m supposed to respond to your distorted bullshit version of what I said. Get bent.

      3. Fallacy: Because I support a nation controlling it’s borders, I support your particular projected policies.
        Fallacy: Because I support government action in one area, I support it in all areas.
        Fallacy: Because I support government acting in an area, I support “a police state.”
        Meaningless snark: “…you know the difference…”

        Government, by necessity, involves some restriction of personal freedoms or rights. As I am a libertarian, not an anarchist, yes I do support limitation of some freedoms. If eVerify is part of what it takes to get illegal immigration under control, sure, I’m willing to give it a try. Realistically, it will always be aimed at long-term and large-scale employers, not individuals who give 20 bucks cash to a guy toting a lawnmower through the neighborhood.

        I run a business. If I am actually going to employ a worker and withhold taxes and payroll for him, then I have no problem with verifying his social security number is valid.

        Technically speaking, all taxation is theft. Can you have a government without some form of taxation? A government that runs on voluntary donations and bake sales? Maybe, but we’re not going to be there any time in my lifetime, so picking my policy positions as if we were is naive.

        1. Libertarianism is not the natural state of human nature. It IS the natural state of commerce. It’s the purest, most just form of state. However, don’t confuse that with human nature. Humans are not, by nature, purely rational and just. All you have to do is look at Every. Single. Government. Ever. to realize that it is a natural human tendency to band together to gain power over others, libertarian ideals be damned. Power is its own reward, its own justification for a significant portion of the human race.

          If you do manage to put together a reasonably libertarian nation — and we’re far closer than most, especially for our size — you have to treat it like a sickly fragile baby, because force internal and external are going to be forever trying to tear it down. Random, poorly-educated mobs of low-wage workers streaming across your borders won’t come because they’re thrilled with your libertarian ideals. They come because they want to take advantage of your success. Emphasis on “take advantage.” A libertarian state needs to be ruthlessly defended. You can, just maybe, have libertarianism within a well-guarded nation. Globalist open-borders libertarianism is a pipe-dream for socially maladjusted fools.

          1. Lol, you’re responding to yourself. You are a lunatic.

            1. There’s a 1500 character limit to posts. It was a continuation, Idiot.

        2. Two wrongs make a right fallacy

          1. Do I say, anywhere, that two wrongs make a right? Try engaging the actual statements instead of sloganeering.

      4. I’m sure you’ll be happy about this:

        http://freebeacon.com/issues/g…..ip-status/

        I’m sure the DoJ is totally doing this because of libertarian motivations and not because it’s a criminal organization in the thrall of progressive political cronies.

    2. I agree that the government should be able to control the borders. The question really is, to what end?

      I think it is in keeping with a classically liberal/minarchist view of government to checks at the border to exclude 1) criminals, 2) terrorists or others that may be coming with the intent do harm, and 3) people with dangerous contagious diseases (though that should be a temporary exclusion if the disease can eventually subside).

      I understand the welfare state complicates the tidy classically liberal/minarchist worldview, and given that I can understand excluding immigrants from collecting welfare. I do think that argument breaks down, though, if they are documented and paying taxes like anyone else.

      But should the government be able to control the border to keep out certain ethnic groups? People of certain ideologies? For reasons of labor protectionism? I don’t see how you can justify that under a libertarian philosophy. That doesn’t mean those concerns are invalid or baseless, just that they aren’t under the purview of government.

      1. So long as the government doesn’t force me to hire someone for ‘diversity’ or doesn’t require me to do business with those whom I disapprove I don’t have a problem with that idea. The problem to me though is not really the welfare state, but the current intrusions on free association.

        1. The problem to me though is not really the welfare state, but the current intrusions on free association.

          The two are related. When the government confiscates your money to redistributed it, it is forcing you to associate with others by dint of giving them your property.

          So-called libertarian ideals, in a vacuum, can simply be recipes for disaster. It’s that kind of idealistic myopia that I rail against with Napolitano.

          We don’t live in Libertarian Utopia, and legislating as if we do, or as if such a thing is right around the corner, is simply stupid.

          You don’t incrementalize your way to libertarianism by ignoring the current state of things to patch a libertarian solution on top of them.

          It’s as if you had a car and you said “IF I had the right chassis, putting a 427 v-8 hemi engine in my car would give me an awesome street racing machine! Therefore I will put the engine in anyway, and we’ll replace the chassis later.” The fact that you just bolted your 427 v-8 hemi on a Yugo chassis and created a rolling deathtrap is irrelevant, because, hey, it’s one step closer toward an awesome street racing machine!

          Sometimes you have to fix underlying problems first, before you can move forward. Restore freedom of association and abolish the welfare state. Then, after we see how that’s working out, you can come ask me how I feel about open borders.

          1. I agree that the likelihood of welfare state expansion is just as likely a result of poor border control since it’s already happening. Doing so invites violence.

          2. Immigrants are not stealing your taxes. They pay plenty and receive little. And yet you have no problem paying for a bloated border patrol and INS to keep them out. You are fiscally ignorant.

            1. Your facts about how much immigrants receive are simply wrong. Immigrants make use of vast amounts of public services. Meanwhile border patrol and USCIS (INS has been gone for a long time) are rounding errors on the federal budget.

              http://www.vdare.com/articles/…..can-whites

        2. So long as the government doesn’t force me to hire someone for ‘diversity’ or doesn’t require me to do business with those whom I disapprove

          Agreed…just don’t force me to bake a cake for fucking mimes.

          1. Fuck you and your dinosaur buddies. You’re not getting a cake from me, motherfucker.

      2. I understand the welfare state complicates the tidy classically liberal/minarchist worldview

        That’s an understatement. Come back and ask me again about traditional libertarian support for freedom of movement when we no longer have a welfare state.

        1. Immediately following the part you quoted I said “and given that I can understand excluding immigrants from collecting welfare”.

          Requiring the abolition of the welfare state before reforming the immigration system is a false choice. We can reform the immigration system in a way that addresses the specific concerns over the welfare state that are raised by increased immigration.

          So let’s talk about that. Would a restriction of some sort on the welfare that non-citizen immigrants can receive satisfy you? If so, what sort of restrictions? If not, why not?

          1. Would a restriction of some sort on the welfare that non-citizen immigrants can receive satisfy you? If so, what sort of restrictions? If not, why not?

            No, because I don’t believe the rules would be enforced. There are already such laws and they are widely flouted by bureacracies at local, state and federal levels. Too much of the bureaucratic apparatus is already under full progressive capture.

        2. Nope that’s not how it works. I want my freedoms and I want them now, welfare state or no.

          THERE IS NO CORRELATION BETWEEN IMMIGRATION AND THE WELFARE STATE. America’s biggest USG expansions all occurred during times of low immigration.

          1. THERE IS NO CORRELATION BETWEEN IMMIGRATION AND THE WELFARE STATE. America’s biggest USG expansions all occurred during times of low immigration.

            *scoff*

            The 16th and 17th amendments (and 18th) were enacted at the height of the turn-of-the-century immigration boom.

            Social Security was enacted in the aftermath of that boom, when on-going assimilation and the depression were in full swing.

            Medicare/Medicaid were enacted in 1965 hand in hand with the 1965 immigration act. Yes, of course, immigration was low right at that moment, but the acts did not stand alone, they were part of an avalanche of progressive government initiatives to radically transform the face of the American electorate.

            And, because immigration has never meaningfully slowed since 1965, all government expansions of power since then have happened during a period of high immigration.

      3. How about limiting the numbers of immigrants? How about if they threaten in other ways than physical, for example an economic threat by taking advantage of the welfare system (which of course wouldn’t exist as such in a libertarian government)?

        Would you agree that there should be rules for allowing immigrants into the country? If so would you agree that immigrants that don’t follow those rules would be criminals?

        1. I said I was OK with denying welfare to non-citizens. And I just said there should be rules for letting immigrants into the country.

          Right now those rules are so onerous that they are impossible to follow and still get into the country. That’s why people cross the border illegally. I am for reforming those rules so that it is easy and straight forward to enter. Doing so would make it easier to check and keep out the people that are actually dangerous.

          As for the people that already broke them, well, it’s a victimless crime. I have no problem with granting them amnesty. That should happen via the proper political and legal channels. It is totally within the legitimate power of the government and law to grant amnesty to people, though. If enforcing some minor punishment like a fine is a necessary political pre-requisite to making progress on this issue, then OK. I don’t personally find it necessary but I understand the urge to enforce some sort of punishment.

          It’s no different than drug laws. If we magically did away with all drug laws tomorrow, I’d be in favor of granting amnesty to drug users/dealers, at least for the “crime” of possessing or selling drugs.

        2. Libertinism recognizes DIRECT harm, not indirect ones, let alone perceived indirect threats

    3. Waitaminnit… that Republican judge has joined the Libertarian Party? I thought this was another article in the Hostile Infiltrator series Reason is hosting as an example of gullibility to be emulated.

      1. Napolitano hasn’t joined the libertarian party, he’s joined the looney bin. Open borders has nothing to do with libertarianism.

        1. Explain how human wandering suddenly has to stop because people with guns made an invisible line. Controlled borders is a National Socialist ideology.

    4. “This is a teenage boy’s understanding of Libertarianism.” It’s not even that cloudbuster, it’s just willful stupidity and has nothing to do with libertarianism.

      1. Hahaha. This is the ignorant pot calling the educated kettle stupid. Way to go Einstein.

    5. Hahaha. Cloudbuster you are just a moron. The very Founders believed migration was a natural right and that the government shouldn’t encourage or discourage it. This is why no authority was given over it. You don’t understand natural rights which are the basis of libertarianism.

      1. I’m pretty sure you’re the teenage I was referring to, or you are at that level of cognitive sophistication.

    6. no, you are a teenage boys understanding of jurisdiction. the federal government has no power to control the residence or settlement of anyone within the several States. “immigration” only has to do with “importation”, an part of “exterior commerce”. The right to control the exterior borders is limited by time, for one, because I cant be perpetually “immigrating”.

      it’s also a matter of whether anyone cares? how come there was no problem crossing borers in yesterday but all of the sudden its an issue? canadians need passports? retarded.

  8. Free movement across borders is a libertarian ideal, but it is only one of many. Self reliance and self determination are also fundamental ideals. I don’t think the system will work if you insert individual principles of freedom into the mix without taking alot of others into account at the same time. As long as we have a significant welfare state with major government interference in both contracts and our daily lives, The People won’t put up with a large incoming tide of newly entitled individuals.

    1. You may be right about a lot of that. But my thinking is, you have to strike at the roots causes of things and not downstream distortions due to the root cause.

      The problem with this kind of thinking is that in order to restrict immigration the way many want to, the federal government must be made even more powerful and intrusive. It is a ratcheting cycle of increased powers with one distortion due to power being met with even more power.

    2. This reminds me of the argument that “the military won’t accept gay soldiers” and “the South won’t accept the black franchise.” Sure, there are opponents, but since when does prejudice have a right to be comforted?

      The New Deal came about in the 1930s after the borders became semi-closed in the 1920s. The New Deal hasn’t really gone away since, except for adjustments and piecemeal changes. It’s not really plausible to say that if the country has fewer immigrants, suddenly we’ll be able to get rid of massive welfare and regulation.

      If anything, it’s more plausible to say that greatly increased immigration will undermine support for welfare at the same time that it provides massive economic benefits. So rather than saying “welfare causes rejection of immigrants” maybe it should be “immigrants cause rejection of welfare” and prompt conservatives and paleolibertarians to correspondingly change positions.

      1. NL_, I hadn’t thought to frame it that way. Very good.

      2. You might be onto something here. It’ll be a bloody fight over the last pieces of cake, though.

      3. ‘This reminds me of the argument that “the military won’t accept gay soldiers” and “the South won’t accept the black franchise.” ‘

        Well, if members of the military won’t carry out the will of the nation, they can be shot. And the South… Well, fuck the South. This is a free country that doesn’t distinguish between niggers and white folk. If the South doesn’t like it, it’s free to leave.

        1. If the South doesn’t like it, it’s free to leave.

          While I agree completely, there is some historic evidence that that is not a universally held view.

      4. The New Deal was an exploit of economic collapse after religious fanatics joined sugar and glucose producers and the Prohibition Party to manipulate the government into banning beer and liquor. In this frenzy the DemoGOP also joined with the Communist Party to push through the Income Tax Amendment. Together these two force bills were the pincers that crushed the U.S. economy and formed the Great Depression. Observe that the altruist looters (unions, collectivists, socialists) never committed to repeal of the dry law until AFTER it was a done deal. But the Dems, much of their elite under indicment, HAD to back repeal. Then the collectivists joined the bandwagon. It’s not as if there were a Libertarian Party for folks to vote for. Their choices were mystical fanatic prohibitionist looters and cynical opportunistic parasitical looters–the very same opposition we face today.

    3. Two wrongs make a right fallacy

    4. except none of that ever happened. “we” diont have a welfare state, although you might be on welfare, which is more likely.

    5. except none of that ever happened. “we” diont have a welfare state, although you might be on welfare, which is more likely.

  9. I’ve been arguing for years that “naturalization” in the Constitution does not mean immigration, though the Supreme Court disagreed. The same Supreme Court that thinks non-commercial intra-state activity may be regulated for its effect on interstate commerce. And thinks that a law passed as “absolutely not a tax increase, put down that dictionary” is nevertheless constitutional as a direct tax. So they’re willing to get to strange places legally in order to justify popular understandings of the Constitution.

    1. more like popular misunderstandings

  10. I quit reading at the fifth paragraph. We do not think we are better than Hispanics we just want control of our borders and the rate and legality of those who enter. for your Info on the West coast there are just as many illegal Asians coming into this country and I’ve encountered more illegal Russians lately than anybody.

    1. Right. No need to expose yourself to ideas that might challenge your preconceived notions.

      1. You know someone can’t argue on the facts when they criticize someone for things they haven’t even said. If the first trick you pull out of your rhetorical toolkit is distorting what your opponent said — in this case, actually inventing motivations — you’re not worth arguing with.

        1. I engaged this issue plenty on this thread. I was responding to a guy who didn’t even read the article. Who’s not arguing the facts nor engaging the ideas? It’s not me.

          Why don’t you respond to my other posts?

        2. Neither you nor Ron have brought any facts to back up your points. Ron’s anecdotes =/= facts

          1. cytotixic
            My anecdote of not thinking I’m better than Hispanics or anyone else is a fact. Anecdote yes but also factual. Your other choice is to call me a liar but I don’t think that was your intent.

      2. I’m fine with challenged opinions but I have no use for false hoods. I respect Napalitano’s opinions however he just pulled a tactic the the left does everyday by making a blanket statement that insinuates that anyone who disagrees is essentially a racist. Napalitano is far far better than that.

    2. Red State calls you and Hitler agree with you.

    3. there is no such thing as “legality” of people. immigration is not a status. its a movement, with a definite start and stop, at some point. you never met any illegal anyone, period; there just no such thing. i commit as many felonies as I have time for, and im still not “attaindered”

  11. Yes the list of collectivized “rights” is endless, as was the printing of German Deutchmarks in 1923. This is why the DemoGOP wants to keep the word void of meaning. If a right is a moral claim to freedom of action, that can be understood. If the value of that right is that such a thing is required for human survival–not as a social insect or zoo animal–but as an independent thinking and happy individual self, then it becomes all to clear that neither the Inner not Outer Party are in the business of defending rights.

  12. I’m pretty sure that, when Article I, Section 9, prohibited Congress from banning, until 1808, “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit,” that was because, in the absence of such a prohibition, Congress’s power to regulate foreign commerce would have allowed it to enact restrictions of immigration. (Yes, I know why that provision was included. I also note that its actual language is much broader than just a reference to slaves.)

    1. No. Just slave trade They made this clear in the debates. I suggest you read them. August 22nd if I remember correctly.

    2. and that’s exactly the point. the federal power is ONLY over the “importation”. not the movement of people, but their “immigration”, which ONLY happens through commerce. The operative fiction in everything is that somehow the context is merely commercial enforcement.

  13. Culture matters. If I have a freedom to associate does it not follow that I have a freedom to not associate?

    May I not, along with those who share a common vision and culture, create a society that seeks to maintain and perfect that culture (of course all the while respecting the natural rights of others within that society, including the natural rights of those who entered my society without respecting its laws. Respecting those rights as they are returned to where they came from) by limiting immigration to that society?

    If not, what does that say about freedom of association?

    1. Do you not get that freedom of association is an individual right? You are defining it as a collectivist right. You do not have to have an association with any person unless you choose to.

      1. You’re an anarchist, not a libertarian. NTTAWWT, but you should understand that.

        1. No, you are a statist, not a libertarian.

          1. I’ve been called a lot of things, but rarely a statist. You are a fool.

    2. Culture matters, and it is not the government’s job to enforce your preferred cultural paradigm.

      1. It is if that’s the kind of government the existing citizens create. A respect for libertarian ideals IS a cultural paradigm. I really don’t understand libertarians who think that their theoretical libertarian utopia will never have a problem with greedy, power-hungry public officials and rent seekers enlisting the support of the non-libertarian immigrant population to enact authoritarian laws and destroy the foundations of Libertopia. Everyone will just magically agree how wonderful it is and rent-seekers and looters will change their ways out of sheer admiration for the beauty of the system.

        1. One of the first things I assume about any government is that there will be ” greedy, power-hungry public officials and rent seekers enlisting the support of the non-libertarian immigrant population to enact authoritarian laws and destroy the foundations of Libertopia”. They will seek to exploit the support of any group that increases their power.

          It is precisely for this reason that I do not support giving that government even more power to control its people.

          BTW, I don’t believe in “Libertopia” and I am not an anarchist.

          1. Exactly which powers are you comfortable giving to government?

            1. Generally, only those powers which are needed to protect individual liberty. Also to protect economic freedom and enforcement of contract. As an aid to help an individual protect himself from the initiation of force.

              So, mainly courts, and national defense at the Federal level. I think state and local governments can have more powers: police, a light regulatory state mainly focused on fraud, some protection of open spaces and common resources…

              Of course the desired precision of libertarianism tends to break down at the lowest detail level. But as long as the philosophy is always there to guide the thinking the best choices can be made.

              1. …national defense at the Federal level….

                My interpretation of this is that it includes keeping random people from wandering over your borders, whether or not they’re accompanied by tanks and artillery.

                I realize that others disagree with this interpretation, but it is a valid interpretation.

                Since you concede the existence of open spaces and common resources, then the common ground of the nation includes open spaces and common resources, and it is the existing citizens, not prospective citizens, who have the right to dictate who will get to use those common resources and how they will be used.

        2. I really don’t understand libertarians who think that their theoretical libertarian utopia will never have a problem with greedy, power-hungry public officials and rent seekers enlisting the support of the non-libertarian immigrant population to enact authoritarian laws and destroy the foundations of Libertopia.

          Oh, I full and well expect greedy, power-hungry public officials and rent seekers to seek, and get, the support of non-libertarians. I think, at best, you’ll probably only be able to maintain Pure Libertopia for three generations. It doesn’t matter what powers you originally give the government — eventually there will be enough people that they’ll just take what they want, constitutions and laws be damned. And it won’t make a difference if you only let the libertarian immigrants in. The natives will tear apart Libertopia all by themselves.

          I guess you can try to only let in the Right People. Maybe you can even kick out the rent seekers and “parasites” that seek to suck the vitality and lifeblood from Libertopia. Hey, you might even be successful in creating your New Libertarian Man. I’m not hopeful. And that sort of thing has been tried by other ideologies in the past. It didn’t work out too well. I really don’t understand why you think you can give the government the power to decide who is worthy of the libertarian utopia and not expect that power to be turned against you.

          1. Since we don’t live in libertarian utopia, I believe I have a legitimate interest in having the government, on my behalf, decide who will come in, use the nation’s common resources and benefit from my tax dollars.

            Any governmental power can be turned against the citizen, ultimately.

            I believe, on principle, that a government with a welfare state, such as ours, that has no controls on immigration is a lot closer to such an event than a nation that is picky about who it lets in.

            All people are not the same. The entire native population of Sweden could migrate to the U.S. and I wouldn’t fear for the republic. They are culturally and ethnically hard-working, sensible and law-abiding. You are simply more likely to be able to maintain a libertarian-leaning society when, if you import people, you import people with a history of a strong work ethic, self restraint and personal responsibility.

            Latin Americans, on the other hand, come from a culture that has produced virtually no governments that are not collectivist, kleptocratic, socialist disasters of one flavor or another. I am not eager for their influence. They should stay home and fix their own lush, resource-rich nations. If they want U.S.-style governance, there’s nothing but themselves and their ruling elite that is stopping them from having it at home.

            If we were simply allowing the cream of Mexico to immigrate, it wouldn’t bother me, either. Instead we’re importing an entire third-world peasant culture. Just great.

            1. You’re worried about socialism and a welfare state, but you are OK with importing the entire population of Sweden? A country with one of the most expansive, cradle-to-grade welfare states in the world? Because they are ethnically hard-working, law abiding, and sensible?

              I’m not calling that statement racist, but go back and look at how that reads. And please explain why you think Latin Americans are somehow locked into this supposedly collectivist, kleptoctatic culture.

              I’m also curious just how you think this ideological test for immigration would work in practice.

              They should stay home and fix their own lush, resource-rich nations. If they want U.S.-style governance, there’s nothing but themselves and their ruling elite that is stopping them from having it at home.

              The same thing was said about most of the immigrants that I (and I’m guessing you) are descended from.

              1. Sweden is not nearly as socialist as most people think. Furthermore, the only reason their brand of socialism works at all — what distinguishes them from Latin Americans — is that they are hard-working, law-abiding and sensible. That’s why Sweden doesn’t look like Venezuela. Sweden has implemented many free-market reforms in the past several decades as even they have realized that the full expression of their 70s-era socialism was unsustainable.

                Culture matters. If we had the entire population of Sweden, yeah, they’d bring their socialist tendencies with them, and vote much like Northeast liberals, but they’d also work hard like Northeast liberals. You can make a lot of mistakes in your country’s governmental design when you have a moral, law-abiding population. As Charles Murray noted in Coming Apart, the thing about the liberal elite is that they talk like liberals, but they live like conservatives: high marriage rates, low divorce rates, high levels of savings, education and achievement. That’s Swedes. The nation can absorb a lot more of that than it can Mexican peasants.

                Why do I think Latin Americans are locked into this collectivist, kleptocratic culture? Because they’ve provided zero meaningful counterexamples.

            2. Your ancestors are comprised of third world peasants.

              1. No, mine are comprised of Western Europeans, the cradle of enlightenment thought. They are a culture that spend centuries developing a civilization from which St. Augistine, Thomas Aquinas John Locke, Leonardo da Vinci and William Shakespeare could arise. I am from the civilization that brought us the steam engine, the germ theory of infection, vaccines, the airplane and the digital computer.

                If you can’t tell the difference, you really lack the capacity to make meaningful judgments of anything.

          2. The natives will tear apart Libertopia all by themselves.

            In a number of recent, pivotal elections it has been noted that the course of the election was determined by demographic change due to immigration since 1965. If the demographic mix of the nation was the same as it was prior to the 1965 immigration act, we’d be electing a completely different slate of candidates.

            I’d rather take my chances with the historical American population than the seething third-world masses who can’t get their shit together in their own countries.

            1. If the demographic mix of the nation was the same as it was prior to the 1965 immigration act, we’d be electing a completely different slate of candidates.

              And if small government Republicans reached out to immigrants and other minorities and disavowed the xenophobic wings of the party, we’d probably be electing different candidates, too.

              People’s voting habits are not ethnically ingrained.

              I’d rather take my chances with the historical American population than the seething third-world masses who can’t get their shit together in their own countries.

              Right, because it’s so easy to just vote a dictator or entrenched group of elites out of office.

              1. And if small government Republicans reached out to immigrants and other minorities and disavowed the xenophobic wings of the party, we’d probably be electing different candidates, too.

                The idea that Republicans just aren’t reaching out to minorities enough is tired. They don’t want the small government we’re selling.

                Right, because it’s so easy to just vote a dictator or entrenched group of elites out of office.

                Didn’t say it was easy. But we did it. Latin Americans have done it countless times — they just keep replacing the old dictators and kleptocracies with shiny new dictators and kleptocracies, because that’s culturally who they are.

        3. Where do you see “protect culture ” in the Constitution?

          1. Exactly what do you think the world “culture” means? Do you think the political, propositional ideals of a nation are somehow walled off from its culture?

            We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

            Justice, domestic tranquility, securing liberty for ourselves and our posterity: the very idea of a written Constitution that establishes a nation based on the rights and liberties of the individual — all that arises from the culture of our nation.

            “Protect (our) culture” is inherent in the existence of the Constitution.

    3. yes and that’s called 50 States and all the counties. With a prospect for more divisions still, by popular demand. Not a UNION of those all those states into a federal purpose, limited by the existing Constitution. Which has delegated NO power to any union government with respect to the residence or inhabitance or settlement of ANYONE within those States.

      Now go right out there and form a society, instead of clickety clacking on the interwebs. Im not holdng my breath.

      btw no one “immigrates into a society”, immigration means “crossing a border”. All of us go through a control in the national ports called “immigration”, whether citizen or not.

  14. Good article but a decidedly different angle then the one you took on Fox news. Always nice to have hindsight and time for a do over.

  15. Yet more conflation of rights and freedoms. And this time over an issue where the Judge should understand the actual legal history. It is self-evident we have the natural freedom to travel. It is also true that a political ideal of classical liberalism and the social contract notion of government was to align rights (ALWAYS a government creation) with those natural freedoms. Calling that ‘natural rights’ back then was lazy but understandable. The social contract idea was still new. Calling it ‘natural rights’ now is merely lazy, deceitful and sloppy – esp since the intent of most of it is to eliminate the social contract idea itself.

    The legal reality is Congress cannot exercise authority on naturalization without also requiring documentation of immigration. The first naturalization law (1790) had a residency requirement and it is not possible for a residency requirement to exist without knowing when the residency BEGINS. Which means documenting the immigration. Naturalization Act of 1802 authorized courts to document the immigration and is the source of everything ‘immigration’ that has occurred since – from Ellis Island to modern visas/passports. Worldwide for that matter since the US was the driving force of everything now assumed as ‘natural’. Shame on you Judge for ‘failing’ to mention that.

    1. Further, why was there such a long gap between 1802 and the late 1840’s when immigration first started occurring in any meaningful numbers? I can understand why Reason/Napolitano/multicultis/open borders types ignore the period – because there are no ad hominems to fling around. But why were there no actual immigrants then?

      The reason is because EMIGRATION not IMMIGRATION was the next issue that the STATE had to deal with. All these freaking hassles to create NATURAL ‘rights’. And since that was done overseas – by consular/bilateral agreements – eg http://avalon.law.yale.edu/19t…..ax1845.asp – Reason/Napolitano can just ignore it and pretend that God created all this until bigots took over.

      I wouldn’t mind an honest argument about any of this. But I won’t find that here.

      1. The Atlantic ocean was a formidable barrier until mid to late 1800’s and the development of steam propulsion.

      2. I appreciate your input and would gladly visit your site or blog to learn more.

      3. I appreciate your input and would gladly visit your site or blog to learn more.

      4. Immigration was usually fueled by people escaping where they were living.

        There was a surge in 1710-1715 as a French invasion of Germany left many refugees in camps around the UK, who were then shipped off the the hinterlands of the New World.

        There was a large number of Germans who came over in 1730-1750, along with a steady flow from the UK.

        There were other surges in the 1840’s and 1860’s as Germany was again in turmoil.

        After 1880, people started coming from other countries of central and eastern Europe to work in the mines and factories, and then there was the aftermath of the first World War, with people from Hungary to Syria.

        And that was just to my hometown.

        1. Sure there were waves of immigration during the colonial era – but those too depended on getting permission to emigrate first. And during the colonial era, the ‘approval’ sometimes happened with the king himself, sometimes with each different colonial charterholder, and sometimes with parliament

          The Irish didn’t emigrate to the US in large numbers in any of the half-dozen famines between 1802 and 1845. They only started emigrating when they were forced off the land there (Corn Laws and tenant evictions) and when the US govt negotiated with the shipping lines to get passenger documentation (which diverted them from Liverpool and Canada to the US).

          Germans didn’t emigrate before the American consuls in the different German states negotiated their bilateral ‘end’ to the feudal restrictions on both property rights and movement (the two are completely linked – and we have deliberately chosen to forget that) in 1844-1847. Those agreements themselves are one of the factors behind the Revolutions of 1848. First as liberals try to get similar things from their own autocratic govts. And when they failed, used the agreements as the escape hatch to emigrate to the US.

          The same applies to every wave of immigrants from everywhere else after that. People didn’t simply freely wander around and somehow end up in the US.

          1. you have to be kidding me. where would i go to get ‘permission’ in an age of wooden ships and no one on the other side?

          2. my german ancestors came to America long before that; before there was even an independent USA. there were tons of people coming from Ireland since the beginning. You know absolutely nothing about history and to imagine a million famished refugees in 1850 being ‘documented’ is another testament to your cartoonish public school social studies mind.

            never happened. everything you wrote is a fantasy.

    2. This is bullshit. Residency can be determined by all manners of documents from the private or local sector or by sworn statement. No Feds required, statist.

    3. that’s completely and obviously wrong, since nary a soul was documented before the 20th century, and even that, barely. pen and scrawled in ink in an easily lost or destroyed paper register.

      and you are wrong about Congress too, because all they do is pass the naturalization law. To this day, we are said to have been “naturalized in a State”, not the United States.

      No court has ever documented immigration. Ports of entry under executive authority documented ENTRY, which is the same as “immigration”. Under the pretense of intl commerce: ships manifest, passengers, etc.

      Most human beings who ever reach land on these shore were never documented nor was such a tracking system even possible until recently. How do you think any court operates? By taking oaths and viewing evidence. It only matter that I can show residence for AT LEAST 5 years, not when exactly some fictitious time period began.

  16. Consider . . .

    “The Constitution is not a suicide pact.” -Justice Robert H. Jackson (Terminiello v. Chicago, 1949)

    “Whatsoever a man soweth, that shall he also reap.” -Galatians VI:7

    “I the Lord search the heart,
    I try the reins,
    Even to give every man according to his ways,
    According to the fruit of his doings.” -Jeremiah 17:10

    Judge that which the Judge writes by its consequences.

    http://inescapableconsequences.com

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  18. This “just in” Mr Napolitano:

    The constitution was a scam. The supreme court was/is a scam.

    Trump is a scam artist. As is Sanders. As are all the rest.

    However, for most here and elsewhere, [ including Mr Napolitano apparently]:

    “In your dreams the constitution is not a scam,
    “In your dreams the Supreme Court is not a scam,
    “In your dreams the Federal Reserve is not a scam,
    In your dreams Donald Trump is not a scam,
    In your dreams Sanders is not a scam,
    In your dreams all the rest are not a scam,
    “In your dreams Obama is not a scam,
    “In your dreams George Bush was not a scam,
    “In your dreams Clinton was not a scam,
    “In your dreams Reagan was not a scam,
    In your dreams, all the rest were not a scam,
    “In your dreams 9/11 was not a scam,”……

    And so on and so forth, ad infinitum .

    Original music and lyrics: “Dreams[ Hormegeddon Blues]”:
    http://www.youtube.com/watch?v=w0o-C1_LZzk

    So, dream on, Mr Napolitano, or not? Your choice.

    Regards, onebornfree.
    onebornfreeatyahoodotcom

  19. The most important part of the Fourteenth Ammendment was left out of the argument “and subject to the jurisdiction”. No illegal immigrant is subject to US jurisdiction if they hold allegiance to an foreign Government. If birth-right citizenship is a Constititutionally protected right, then why did Congress need to carve out legislation for Ambassadors, Diplomats, and foreign prisoners? If a female jihadi in Gitmo has a baby it’s automatically a US citizen? I think not.

    1. No illegal immigrant is subject to US jurisdiction if they hold allegiance to an foreign Government.

      Interesting argument. So a legal immigrant who holds allegiance to an foreign government is subject to US jurisdiction but an illegal one is not.

      But tell us: just exactly how does a baby born on US soil of illegal immigrant parents “hold allegiance to an foreign government”?

      Also what about a baby born to a parents only one of whom is an illegal?

      If a female jihadi in Gitmo has a baby it’s automatically a US citizen?

      Are there any female jihadis in Guantanamo Bay?

      What about a baby born to a female guard and a male jihadi? Is it s a US citizen?

      why did Congress need to carve out legislation for Ambassadors, Diplomats, and foreign prisoners?

      They didn’t–just as the US Congress did not need to enact title 18, section 2381 to define treason when art 3 sec 3 of the US constitution does so already.

      1. it depends on his breakfast cereal

    2. This is rationalized statist bullshit. There is no such thing as illegal immigration in the U.S. And no jurisdiction means that the person has direct legal ties to a foreign government per legal agreement.

      1. nu’ uh! i saw it on social studies

    3. everyone within the United States is subject to that jurisdiction, period. you’ve gone and forgot the part about being born here. Congress didn’t “need” to carve out those exceptions, they have always existed since the English standard was raised.

      If you’re trying to say that children of the foreign born are not citizens, you’re wrong, and those exceptions instead prove the rule.I can’t imagine why anyone would care though. Citizenship has to so with political rights, not physical presence or absence. Its not illegal to be foreign and its up to the States who they will admit or expel, not the feds.

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    http://www.jobnet10.com

  21. Judge Napolitano writes of a “natural right” to movement. Do we not have a “natural right” to define our borders, who may be part of our nation, and how many?

    Frankly I find Reason’s position on immigration to be irrational. Considering the way that people vote in other countries and when they become citizens, the kind of policy that Reason often advocates for would likely be nothing short of suicide for the idea of an individualistic nation. Assimilation has completely failed in both Europe and America with the kind of replacement-level immigration that has been carried out since the ’60s. Immigration to Europe has been a disaster for individual rights, particularly speech and expression – it is easy to say “that could never happen here,” but we’ve seen our freedoms eroded (as Reason and its contemporaries have documented.) Those who blame “the welfare system” for high immigration and/or the failure of assimilation are ridiculous – if these people did not want welfare, why are they so dead-set on voting for it in their own countries? Even our “Western” contemporaries, Europe and Australia do the same. If the welfare system did not exist here they would simply seek to vote it into existence after naturalization, much like what happened with native collectivists in the 20th century.

    A simple thought experiment, if you will – if the borders were thrown open tomorrow, how long would it be before America became California but on a national scale, or something worse?

    1. The concept of a “nation” is tribalism writ large, used by predatory organizations to control those it wishes to predate upon. The individual’s natural right mobility may end where private property belongs, but that’s all.

      “A simple thought experiment, if you will – if the borders were thrown open tomorrow, how long would it be before America became California but on a national scale, or something worse?”

      So, you believe people have the right to choose their own government, just as long as they choose the government you approve of?

      1. What I’m saying I believe is that bringing in millions of people whose actions show they have no desire for free minds or free markets is completely illogical if you want free minds and free markets. Liberalism (in the classical sense) and libertarianism aren’t ideas that are likely to be carried forward when a large portion of the people are collectivist Hispanics from Central America, tribal African blacks, and Asians.

        1. If you think the fascist commie-crats want free minds and free markets you have not been paying attention.

        2. nobody is bringing them in, they come on their own. the thing is, it seems to escape people like you that immigration controls, which are onerous illegal and misapplied across the board in this country; are also being applied against whites.

    2. Natives have done just as much as immigrants, and probably a lot more, to erode individual rights.

      1. much more. the most libertarian culture out there are the foreigners who put their shoulder to the wheel of life and grind. so many local born americans are weak and contemptible at this point.

    3. the USA is not a nation, but a continent. No, there is not any natural right to define borders, its the opposite: borders will define natural rights. There is no “our” nation, you are not “we”. You do not have a country or a nation, because if you did,

      you wouldn’t be asking these ridiculous questions.

      Instead, as history would have it, there are barely 50 States in a Union where most of the land is unpopulated.

      Name one place in America where a homogenous population is being threatened. The hispanic southwest? how did all those place names get there?why is Arizona on the border with Mexico? Which part is “national”- the empty desert? the mexican areas? the white people with air conditioners?

      Big international cities? try visiting one, they are all huge and overwhelmingly mixed. Its funny how all the areas “threatened” by “foreign invasion” dont seem to have many foreigners.

  22. Art-1, Sec-8:
    “…To regulate Commerce with foreign Nations…”
    Since the movement of peoples is commerce (and has been argued as such by Libertarians), and that this immediately precedes Congress’ authorization “…to establish an uniform Rule of Nationalization…”, it would seem to grant the Federal Government authority to maintain the sovereignty of the state by determining who may, and may not, transgress the borders of said state; particularly in light of the Preamble’s declaration of purpose to “…provide for the common defence…”.
    Also, this would not be the first time Judge Napolitano has been less-than-correct on this subject.

    1. I’ve never heard a Libertarian argument that mobility = commerce. If I walk across the state line to get a better view of the sunset, what commerce have I engaged in? Sorry, that’s a thin reed to hang federal oversight on.

      And since when are unarmed people peacefully crossing the US border assumed to be attackers for which the Federal defense is needed? Designating the rules for naturalization does not automatically extend to a control of what those naturalized citizens might subsequently do.

      Weak arguments all the way around…

    2. the movement of people is not evidence of commerce, it is an incident of commerce. So you actually hit the nail and missed it all at once: the United States is empowered to regulate foreign Commerce. No where has the federal government ever been delegated some authority to maintain anything within any State, except as an act of war or rebellion.

      if providing for the common defence means control of settlement in the several states then NATO has control over immigration into France. Why not? The local sheriff will run the public schools, the moms club is the new mayor, and my underpants are a hat. Broken streetlight? Call the Army, it all makes sense now.

  23. “The Declaration of Independence and the Constitution underscore the truism that all persons have the same natural rights, …”

    I’d change that to “and the Constitution, as amended underscore…” since slaves were certainly not assumed to have any natural rights until passage of the 13th and 14th Amendments.

    1. Which proves that Napolitinos argument doesn’t hold water. Right from the start it is wrong.

  24. If a Republican becomes President . . . I hope they appoint Napolitano Attorney General.

  25. I think Napolitano makes a good point, that the children of persons “fleeing foreign governments” may indeed qualify for birthright citizenship under the 14th Amendment. But unless the parents have taken action to indicate that they were separating from their former government(s) and putting themselves under the full jurisdiction of the U.S. (for example, by applying for citizenship or asylum as refugees, leading to citizenship), then I don’t think the 14th Amendment would apply. It certainly wouldn’t apply — using Napolitano’s logic, at least — to “birth tourists” or undocumented immigrants who are simply here to work or study, and who maintain ties to and residences in their original countries. I appreciate that he made clear that the US Constitution does not delegate immigration power to the Federal Government, and I am disappointed that this article did not really elaborate on that aspect of the debate.

    1. except none of that is relevant. anyone who can show birth in the united states is presumptive a citizen anyway. it would have to have been a rare case that this standing was challenged, since a birth certificate for example just shows minimal details. and its of little importance, since the last thing anyone seems to care about is that an alien price or diplomat has managed to “pass” as a local citizen…

      the 14th amendment drew from older language and a standard that was developed in England. But again the problem is all this folderol about “citizenship”. i dont have to be a citizen in order to abide in this continent somewhere. it doesnt matter who is a citizen, and very little of actual immigration control is really present in these conflations and misconception, which are really just artificial TV-induced hallucinations, since none of it you; notice has ever actually happened somewhere. When did you see some illegal immigrants? Did you mean BROWN PEOPLE? then go start a white country.

  26. The government has jurisdiction over an illegal immigrant, because they are criminal. The government has no jurisdiction over an illegal immigrant’s child that was born in the US. The infant is innocent. The government has no right to abduct the infant an make them a citizen. The government had jurisdiction over slaves because they were considered property based on the Dredd Scott decision.

    1. does that mean native birth is a good defense against the jurisdiction of the united states? try it out some time, go rob a bank and plead citizenship; see what happens.

      i think you dont know what jurisidiction means.

  27. The judges comments make interesting, perhaps troubling reading.

  28. I used to think that Napolitano was intelligent. What is it about writing for reason that makes them all take a stupid pill? A nation that cannot control its borders is not a nation; it has relinquished its sovereignty.

    1. you didnt pay attention to what he wrote

  29. Oh good grief! Another fool who makes stuff up as they go along.

    RE: “THE RIGHT TO TRAVEL IS A NATURAL RIGHT.”

    So members of ISIS should be able to just walk across our borders at will. Soldiers of other armies should be able to walk across our borders at will right? No? Why not?

    First, all natural rights to do any particular thing terminate when they infringe on another person’s natural rights.

    A person has a natural right to control their own property and, ergo, so does a city, state and nation. So no, we don’t have a natural right to travel across the boundaries of other nations. Please let me know if you saw a hint of that somewhere in the Constitution or in the debates leading up to its ratification.

    RE: “NATIVISM?WE ARE EXCEPTIONAL; WE ARE BETTER PEOPLE THAN THEY ARE”;

    If you can’t win the argument based on facts, change the opponent’s argument to demonize him and falsely make yourself look good. What complete nonsense!

    Again, let me know if anyone in the mainstream who supports a clarification of the 14th Amendment agrees with your statement.

    1. the entire united states continent is not personal property. most of it isn’t.

      yes we do have a natural right to travel across political boundaries, which have nothing to do with property.

      States have a natural tendency (not “a right”) to control their borders; so what?

      let me know if you saw a hint of restriction on the right to travel in the settlement of the colonies. where did everyone come from if by traveling?

      chicken comes from the supermarket. air is made by the mayor and his committee. americans sprouted up when Johnny Appleseed spread the candycorn he got from Indians after the First Halloween. They were Penguins, and they meant it.

  30. RE: ..STRICT SCRUTINY?.REQUIRES THAT THE GOVERNMENT DEMONSTRATE AN ARTICULATED AREA OF JURISDICTION and a compelling state interest served by the least restrictive alternative BEFORE IT CAN TREAT A PERSON DIFFERENTLY OR UNIQUELY BECAUSE OF HIS OR HER PLACE OF BIRTH.

    The United States government has jurisdiction over the United States last time I checked.

    RE: A COMPELLING STATE INTEREST IS ONE THAT IS NECESSARY TO PRESERVE LIFE OR THE STATE’S EXISTENCE,

    Again, please let me know where you see the high bar of “life” or “existence” in the constitution as well as the direct or implied link to place of birth.

    RE: whether here legally or illegally, THE CONSTITUTION PROTECTS ALL PERSONS FROM GOVERNMENTAL DEPRIVATION OF LIFE, LIBERTY AND PROPERTY WITHOUT DUE PROCESS.

    And so due process would mean lawfully determining if persons are legal and deporting them if they are not.

    RE: IN THE SAME ERA, THE COURT HELD THAT ALL BABIES BORN HERE OF ALIEN MOTHERS ARE CITIZENS.

    Yes it did and thereby contradicted previous rulings and without any basis in law.

    1. wrong. The United States has jurisdiction over a limited number of subjects which are together, called “the United States”. Including-

      D.C., federal territories and forts

      ports of entry and interstate commerce.

      maybe a few other places, i dunno. The federal government does NOT have jurisdiction ‘over the United States, they have limited jurisdiction IN the United States.

  31. RE: THE FOURTEENTH AMENDMENT REQUIRES THIS, and its language is inclusive: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States…” THOUGH WRITTEN TO PROTECT FORMER SLAVES, ITS LANGUAGE IS NOT LIMITED TO THEM.

    Oh? Why is it not limited to them or those like them if they are what it was specifically written for? Why would it apply to persons they never contemplated? Just because you said so?

    RE: SOME WELL-INTENDED FOLKS HAVE ARGUED THAT THE LANGUAGE “ALL PERSONS” DOESN’T REALLY MEAN “ALL”

    Perhaps, but I have rarely heard that. I have, however, heard of MANY, MANY PEOPLE who have argued that the words “AND SUBJECT TO THE JURISDICTION THEREOF” cannot apply to illegal aliens because then the words would have no meaning and the result would be exactly the same if they had left them out. In fact, this is the fundamental argument on the 14th Amendment, and yet in the whole of your article here you have mentioned everything but that.

    This suggests that you know that your arguments are false and do not stand up to reason and fact.

    My guess is that you are not interested in truth, but rather to politicize the debate and demonize the those who disagree with you.

    1. Bingo – not truth, but propaganda.

    2. because the standard interpretation of any language is the ‘plain meaning’ of the words.

      You mixed up a history lesson with a legal clause. Lots of law stuff was ‘meant for’ something in particular yet it applies overall, and going forward.

      Think that’s wrong? THEN WHY IS EVERYTHING OUT THERE IN LINE WITH WHAT I WROTE AND NOTHING WITH WHAT YOU WROTE? Ever see anyone denied citizen ship cause it made sense to you?

      He never said that aliens of any description become citizens by the 14th amendment,. He observed that the CHILDREN are automatically citizens; and none of that has to do with immigration; anymore than immigration has to do with living somewhere in America.

      3 THINGS, ALL DIFFERENT

      immigration

      citizenship

      residence

  32. Judge Napolitano admits that persons not subject to the jurisdiction of the United States cannot give birthright citizenship to their offspring. How then does an illegal alien acquire subjection to the jurisdiction of the U.S. if 1) They are not even known to be here in the legal sense and 2) Are attempting to bequeath birthright citizenship to their offspring by a legal subversion?
    I really think the legal community is parroting precedent without critically examining their position. I wonder, for instance, if a child was given a stolen property by its parents if the Judge N. would agree that the stolen property, having been handed over by the parents and now in the innocent possession of the child would give the child title to the property?

    Secondly, birthright citizenship does not infer citizenship by the illegal alien parent. Under the Elian Gonzales precedent the parents are fully invested with the right to determine who shall have guardianship of their children. That precedent nor a 14th amendment reading giving birthright citizenship to a child born her will give the parents any other legal rights, specifically a legal anchor. IOW, deport the parents. Where they choose to place the child is their business. But, deport the parents.

    1. how is it even possible to “bequeath” citizenship? citizens are made by operation of law, not parents.

      what on earth is “known to be here in the legal sense”?? find one, ANY law at all, that relates to living in America. you can’t/ No one is living anywhere illegally.

      here’s how ANY person becomes subject to the jurisdiction of the united states- by making this country his permanent home; forgoing other ties of allegiance. The only relevance to the citizen ship clause was to establishing that everyone born here is entitled to political rights. This never had a thing to do with immigration, or nationality.

  33. “The right to travel is a natural right?”

    Where is that written?

    Try entering most countries without permission.

    1. Natural rights don’t come from written word but from understanding, grasshopper.

    2. try speaking freely in many countries. so what?

  34. I was applauding until you gave credenceto strict scrutiny as valid or some sort of high bar. It is patent bullshit and absolutely destructive. It is simply a way for an activist court to rubber stamp unconstitutional law. The state interest is invalid.

  35. If only we had some historical examples for how allowing large numbers of barbarians into a civilized nation is likely to work out….

    http://www.unz.com/isteve/civi…..an-empire/

    1. it already happened when the village catholics from europe came over and wrecked everything 150 years ago.

  36. I wish Napolitano had taken the short step of making the constitutional references he’s writing about.
    Here they are: Article I, Section 8, clause 4 – Congress shall have the power to establish an uniform rule of Naturalization…”
    Then: Article I, Section 10, clause 1 – The migration or importation of such Persons as any of the States new existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight…”
    Note that nowhere is there a power granted to the federal government to regulate immigration, to allow or disallow Persons admitted by the States, but only to establish a uniform rule of Naturalization.
    The federal government has assumed a power without an enumeration of that power, making the entire immigration structure illegal.
    Precedent, you say. SCOTUS said, you say. I respond to that asking this; where is it given to SCOTUS a power to amend the constitution by a ruling and legitimizing that amendment by precedential use of it? It is a completely conjured power and a usurpation of our power and rights under Article V.

    1. That’s actually Article I, section 9. Since it is now indeed after 1808, it seems clear that Congress is permitted to prohibit migration and importation of persons.

      Imported person: slave
      Migrating person: immigrant (legal or otherwise)

      1. exactly: the IMPORTATION of persons. Not the persons themselves.

    2. they are regulating international commerce. movement or travel is merely an incident.

  37. In the same era, the court held that all babies born here of alien mothers are citizens.

    Citation?

    He is a judge, after all. He’s making a legal claim.

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