LYNN BERGMAN: HOW STATE MAY RESPOND TO ILLEGAL IMMIGRATION
“Invasion” as presented in the Constitution
The noun “invasion” appears in the Constitution three times and the verb “invaded” appears once. The appearances are as follows:
Article I, Section 8, Clause 15
Each state has a militia. Congress may enlist state militias to “repel invasions”
Article I, Section 9, Clause 2
An “Invasion” may give Congress authority to suspend the writ of habeas corpus (a traditional protection against imprisonment without trial)
Article IV, Section 4
The federal government is obligated to protect each state “against Invasion;” and on application of the legislature, or of the executive (when the legislature cannot be convened) “against domestic Violence”
Article I, Section 10, Clause 3
A state – independently of the federal government – may engage in war if “actually invaded, or in such imminent Danger as will not admit of delay”
Definitions of “Invasion”
Only one of thirteen founding-era (i.e. 18th century, 1713-1789) dictionaries limited the verb “invaded” and the noun ”invasion” to formal military incursions. The other twelve Included the military definitions but also added definitions such as “to intrude,” “to encroach,” and “to enter in a hostile manner.” Congressional debates concerning invasion included only physical intrusions, not intrusions on rights or on personal space. “Hostile” meant “without permission.” International law at the time of the founding confirmed that people had no right to enter a sovereign’s territory without the permission of the sovereign.
Summarizing, the Constitution’s words “invaded” and “invasion” included unauthorized mass migration into the United States or into individual states. Unauthorized mass migration therefore triggers certain government powers and duties – state as well as federal.
Federal Powers and Duties
Article II, Section 3 of the Constitution directs the President to “take Care that the Laws be faithfully executed”. This was the section that allowed President Lincoln the authority to commence military operations against the seceding Southern states. And according to Article IV, Section 4 above, the federal government is both empowered and required to wage defensive war against Invasion AND to wage war or undertake police action against domestic violence, if an affected state demands that it do so.
State Powers and Duties
State war power did not derive directly from the Constitution; it was understood to be part of the sovereign authority retained by the states after the Constitution was ratified. Article I, Section 10, Clause 3 recognized and limited these reserved state war powers. A state may keep troops and ships of war in times of war… and engage in war… if Invaded or in such immediate Danger as will not admit of delay.
The Constitution also did not abolish state capacity to enforce the law against criminals. 18th century legal writers called criminal gangs “hostes humani generis”, a Latin phrase meaning “enemies of the human race”. Enemies of the human race include both pirates and land-based gangs of thieves, deserters, poisoners, assassins, incendiaries, and “unauthorized volunteers in violence.” The Constitution left the states with the power to conduct defensive war against invasions launched by enemies of the human race AND it also left the states with police power to respond to their criminal acts.
Can you think of some “enemies of the human race” operating along our Southern border today? I will offer a hint…human smugglers, women and child sex traffickers, drug smugglers, and weapons smugglers.
Federal Preemption
The Constitution grants the federal government certain enumerated (listed) powers. When the federal government constitutionally exercises one of these powers, its decision is “the supreme law of the land.” In such a case, federal law “preempts” (overrides) state law. On the other hand, if the federal government acts outside its enumerated powers, the action has no legal effect, and state law remains controlling. If a state law regulating foreign commerce and/or immigration is broadly consistent with federal policy, that state law should be held by the courts to be valid.
For example, barrier placement in a river by a state (to repel an invasion), when the river happens to be an international boundary, may be preempted by the federal prerogative to control navigable rivers under the Constitution’s Commerce Clause. Presumably, the state could leave the river barrier in place until a new barrier is erected outside the river’s geologic floodplain on land within the state’s boundary.
“Necessary and Proper” Powers of the Federal Government
A modern argument flies against the concept of a state’s right to defend itself. The argument is “The Constitution gives the federal government not only powers listed in the document but also vast “necessary and proper” (incidental) powers, that can be used to override state efforts at self-defense.” During the twentieth century, the Supreme Court stretched the federal government’s powers beyond recognition.
For example, under expanded “necessary and proper” federal power, the state in the example stated above may well be prevented by the federal government from placing a barrier even outside the river’s geologic floodplain.
Fortunately, the Supreme Court is aware of the distortions caused by its expansion of federal powers and has attempted to remedy such unwarranted additional power. Examples include the 1997 “Printz v. United States” case which found that a federal law could not be “proper” if it dictated to a state the duties of its own state officials.
A state’s power of self-defense is even more central to its sovereignty than full control over its own officials. That power of self-defense should not be subject to the whim of federal officials. Otherwise, those officials could refuse to protect a disfavored state from Invasion and then prohibit the state from defending itself as well.
“Allegiance”
To determine the scope of a state’s defensive war powers we must consider “allegiance.” One of the most cherished acts of a United States citizen is the recitation of our “Pledge of Allegiance” to the flag of the United States of America and allegiance to the Republic for which it stands. Allegiance is very important and affects the meaning of several portions of the Constitution. Two examples are the part of Section 1 of the 14th Amendment called the “Citizenship Clause” and Article II, Section 1, Clause 5, which requires the president to be a “natural born Citizen”.
“Alien Friend”
At the time of the founding, distinct terms were used to describe allegiance. A foreigner that was legally visiting owed “local allegiance” and was considered an “alien friend” if local laws were obeyed, even if primary allegiance was to the foreigner’s homeland. Such a foreigner had been a “subject” of England prior to the Declaration of Independence but was NOT considered a Citizen of the United States of America. An “alien friend” choosing to exercise the final steps in the naturalization process, proudly recites our” Pledge of Allegiance” to conclusively demonstrate full commitment to fulfilling the duties of citizenship to enjoy the multitudinous rights of citizenship.
“Alien Enemy”
If a foreigner entered illegally or the foreigner’s homeland was at war with the United States, the foreigner was considered an “alien enemy” (and NOT a citizen).
“Natural Born Citizen”
Any child of a United States citizen is a “Natural Born Citizen.” A person born in the United States of America or any of its territories whose father is an “alien friend” (fully obeying local laws and not entered illegally) is also a “natural born American citizen.”
The “Citizenship Clause”
The Citizenship Clause of the 14th Amendment reads as follows:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
Birthright Citizenship
The history of the 14th Amendment tells us that “subject to the jurisdiction” of the United States of America means that for a child to have “birthright citizenship”, the child’s parents must be in allegiance to the United States. Specifically, the child’s parents cannot be “Invaders.” And they cannot be foreign diplomats. In fact, in 1868, when the 14th Amendment was adopted, the child’s parents could not be tribal Indians (That was changed in 1924 by the federal Indian Citizenship Act.)
The Supreme Court has confirmed what history tells us. In 1884, the SCOTUS stated that “subject to the jurisdiction thereof” means “in allegiance to the United States of America.” In 1898, it ruled that children born of foreigners lawfully in this country (and therefore in local allegiance) are citizens of the United States of America. The SCOTUS has not ruled to date on the corollary question “Are children of foreigners unlawfully in this country (and therefore “Alien Enemies”) citizens of the USA?” It is long overdue for the SCOTUS to confirm the necessity of “local allegiance” to allow “Birthright Citizenship.”
My Thoughts: I strongly believe that naturalized citizens are generally equally or even more civic-minded than those born to citizen parents within the United States of America and its territories. Further, all the federal requirements for naturalization should be mandatorily taught in all grade schools within the United States of America and its territories just as the Pledge of Allegiance is daily recited. Our southern border must be 100% impenetrable. Only then will we be capable of vetting, admitting, and naturalizing (within 3 years maximum) as many immigrants as possible that currently suffer elsewhere under tyranny.
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