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L. Neil Smith’s THE LIBERTARIAN ENTERPRISE
Number 942, October 1, 2017

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Constitutionality of Immigration Control
by Carl “Bear” Bussjaeger
carl@bussjaeger.org

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Special to L. Neil Smith’s The Libertarian Enterprise

A couple of weeks back, Vin Suprynowicz published a column titled “Setting up the straw man,” which discussed the odd (for an alleged libertarian) positions of LP Presidential “candidate” Gary Johnson. Since then, Johnson and running mate Weld have gone out of their way to prove the LP has demanded to be taken off of life support.

One of the issues Vin addressed was immigration. Unfortunately, that attracted the attention of a person I once liked and respected, but whom I now go out of my way to avoid, for very behavior he displayed on Vin’s site. He spewed invective, hostility, accusations, and declared that he is empowered to decide who is a libertarian (i.e.—if you aren’t an anarchist who believes, not merely that government shouldn’t exist, but that government doesn’t exist, then he declares you a non-libertarian authoritarian).

The problem with his technique is that it looks a lot like trolling. He rarely backs up his assertions with supporting facts, and disregards or derides facts presented to him.

Case in point:

“According to the US Constitution, there’s no such thing as an illegal immigrant.”

Well, actually…

Article 1, Section 8:
The Congress shall have Power To…

  • provide for the common Defence…
  • To establish an uniform Rule of Naturalization…
  • To define and punish […] Offences against the Law of Nations;
  • To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

It would not be difficult for an honorable man to come to the conclusion that those powers of Defence, Naturalization, and repelling Invasions could easily provide a Constitutional basis for preventing uncontrolled immigration in violation of the law. But honorable man might also disagree, holding that it isn’t explicit enough a power.

But I didn’t address that “Law of Nations” above. Now I will.

I confess that, until recently, I was ignorant of the Law of Nations. I had naively assumed that was just flowery language for commonly accepted, but unwritten, practices; much like English common law: unwritten because it was accepted (and still is even in America).

The Law of Nations is a book written by Emmerich de Vattel in which he defines nations or states as “bodies politic, societies of men united together for the purpose of promoting their mutual safely and advantage by the joint efforts of their combined strength,” and describes the rights, duties, obligations, and limitations of such bodies.

The framers of the Constitution had copies of that book at hand as they drafted that document in turn. Indeed, you can find entire phrases lifted from LoN and placed within the Constitution (“promote the general welfare,” book 1, chapter II). And the terms inhabitant, citizen, natural born citizen, and naturalization itself come from LoN. Article 1, Section 8 clearly sets this as enforceable.

Chapter II of LoN has it that, “A nation is a being determined by its essential attributes, that has its own nature, and can act in conformity to it. There are then actions of a nation as such, wherein it is concerned in its national character, and which are either suitable or opposite to what constitutes it a nation; so that it is not a matter of indifference whether it performs some of those actions, and omits others.

Digression: Perhaps the European Union should consider that point, as it works to social-engineer the diverse nations of that continent into a homogenous socialist soup.

In chapter XIX we find, “For, on the other hand, every nation has a right to refuse admitting a foreigner into her territory ,when he cannot enter it without exposing the nation to evident danger, or doing her a manifest injury, what she owes to herself, the care of her own safety, gives her this right; and, in virtue of her natural liberty, it belongs to the nation to judge, whether her circumstances will or will not justify the admission of that foreigner.” (emphasis added—cb)

The nation thus has a right to determine who it will or will not admit, and chapters II and XIX make it clear that immigration which would alter the character of the nation in a manner it does not desire would be grounds for denying entry. That is, those who can culturally assimilate are acceptable, while those who instead demand to inflict the holidays and rules of their origin — whether Cinco de Mayo or Sharia law — on everyone (as opposed to simply participating privately and individually) would not. An immigrant from groups with a higher prevalence of disease and terroristic tendencies than our own nation could be denied entry as an “ evident danger.”

So, yes; according to the Constitution, there most certainly is such a thing as illegal immigration.

Personally, I’d be all in favor of completely unregulated immigration if we totally dismantled the welfare/SS/disability/WIC/EBT/food stamp/Section 8/Obamacare/etc giveaways that attract freeloaders instead of people who want to better themselves. But I have to work with the world as it is (while working for the better version). That’s the part some people can never grasp; that individual confuses what he wants with reality.

 


Reprinted from Mr. Bussjaeger’s blog posting for June 26, 2016.

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