I recently learned I was wrong (again). It happens.
I said the Texas government wasn’t allowed, by the Constitution, to control immigration.
Thomas Knapp pointed out that the same clause of the Constitution that forbids the federal government from controlling immigration allows the states to regulate immigration into their states— if read in a certain way. I have read that clause many times, but was focused on what it did to the feds, blind to what it allows of the states.
He also pointed out that this doesn’t make it moral, just “constitutional”. The Constitution allows many unethical things.
I’m still opposed to authorization reactions to anything. I still believe private solutions are better. If property owners want to fence off their property they have the right to do so. Government, be it the Texas or federal, has no rights. None. It has power— the power to do wrong and get away with it.
I hate being wrong, but I learn more from being wrong than from being right.
I believe both of you are incorrectly interpreting Article I, Section 9, clause 1, which reads:
ReplyDelete"The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person."
This clause forbade the federal government from interfering with the slave trade for 20 years, until 1808, after which they did in fact ban the importation of slaves. This is the obvious interpretation of the clause based on the debates in the Constitutional Convention as recorded by James Madison. https://teachingamericanhistory.org/document/constitutional-convention-the-slave-trade-clause/
That's how I always read it before-- dealing strictly with the importation of slaves, which is why I say " if read in a certain way". I can see how the Texas government could interpret it to say what they'd rather it said.
Delete"Migration" sounds too consensual to refer to slaves. Unless that was to make it sound less evil than it was.
I will read that page and see what it has to say. Thank you.
"Mr. PINCKNEY. If slavery be wrong, it is justified by the example of all the world."
Delete"But everyone else is doing it!"
That's so statist.
If they'd meant only slaves (importation), then they would only have mentioned slaves. They specifically and intentionally included immigration.
ReplyDeleteThe slave states refused to ratify a constitution with a federal power to regulate the slave trade, but the anti-federalists among them did want a federal power to regulate immigration to "preserve the national character" (John Winthrop, aka Agrippa, in the anti-federalist papers of the time).
Pennsylvania tended toward anti-slavery, but refused to ratify a constitution with a federal power to regulate immigration.
So they horse-traded a compromise to put both questions off for 20 years.
After 20 years, Congress had reference to its commerce regulation power to regulate the slave trade, but clearly and unambiguously understood itself to be forbidden to regulate immigration until after an activist Supreme Court miracled up that power out of its ass in 1875 in Chy Lung v. Freeman. Even then, they weren't really certain of it, and hung the Chinese Exclusion Act of 1882 on treaty provisions instead of on that SCOTUS ruling. It wasn't until the 1890s that the feds took over immigrant processing from the Port Authority of New York with Ellis Island, and it wasn't until 1947 that they dared require a passport to enter or leave the US (and even then only at major points of entry -- not until after 9/11 at the Mexican and Canadian borders).
But of course that's all water under the bridge, and Spooner was right -- "whether the Constitution really be one thing, or another, this much is certain -- that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist."
Spooner was right about a lot of things.
DeleteIronically, not all of the slaves states were opposed to the federal government banning the slave trade. According to Madison, General Pinckney argued that it would be unfair to Georgia and South Carolina, but "As to Virginia, she will gain by stopping the importations. Her slaves will rise in value, and she has more than she wants."
ReplyDeleteI agree that there is nothing in the Constitution delegating any authority over immigration to the federal government, and while Madison's Convention notes convinces me that this particular clause was solely concerned with the slave trade, it does imply that the States had reserved authority over immigration and the 10th Amendment reinforces that.
One of the reasons that the Western Roman Empire collapsed was due to the large number of foreigners living there who had no loyalty to their new homeland.
ReplyDeleteInteresting! I never thought of "the empire might collapse" as a utilitarian argument in favor of open borders before!
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