A
Constitutional Moment
Seth Lipsky Nov. 20, 2014
The Founding Fathers were clear about who sets immigration policy
The coming clash between President Obama and Congress over immigration
promises to light up what I like to call a constitutional moment. This
is a moment in which our politics are so divided that we have scraped
away the soil of legislation and are fighting on American bedrock.
Rarely has it shone more clearly than in respect of who has the power
to decide who can come here and be naturalized as a citizen.
Nor,
the record suggests, did they want the President setting policies on
immigration and naturalization. There may be talk about Obama having
presidential “discretion” in enforcing immigration laws, but the record
of the Constitutional Convention makes clear where the founders wanted
discretion to lie. “The right of determining the rule of naturalization
will then leave a discretion to the legislature,” James Madison quotes
Alexander Hamilton as saying.
This is one of the reasons we seceded from Great Britain. King George
III had been interfering with immigration to the colonies. It was one
of the complaints enumerated in the Declaration of Independence. The
British tyrant, the Americans declared, had endeavored “to prevent the
Population of these States.” For that purpose, they said, George III
had been not only “obstructing the Laws for Naturalization of
Foreigners” but also “refusing” laws “to encourage their Migrations
hither.”
The articles of confederation that first bound the newly independent
states failed to solve this problem. Each state set its own policy on
naturalization, with the potential for chaos. Hence the founders, who
gathered in 1787 in Philadelphia to write the Constitution, granted to
Congress the power to “establish an uniform Rule of Naturalization.”
They could have granted this to the President or left it to the states,
but they assigned it instead to Congress.
So Obama, in threatening to act on his own, is playing with
constitutional fire. It’s not that I object to his liberality on
immigration. On the contrary, for years I was part of the Wall Street
Journal’s editorial page. It reckons that it would be illogical to
stand for the free movement of trade and capital absent the free
movement of labor. It once called for a constitutional amendment saying
“there shall be open borders.”
That is based on the idea of human capital, the notion that in a system
of democratic capitalism people have an incentive to produce more than
they themselves consume. This system discovers that more people lead to
a richer society for all. In my generation, this point animated the
campaign for America to take in the boat people escaping Vietnam after
the communist conquest. What a windfall they turned out to be.
I have also long plumped for a merger of pro-immigration activists and
pro-life conservatives. A movement that cherishes pro-life principles
contradicts itself when it emerges against immigration. Better to press
consistently for the idea that more people are better, particularly in
a country as underpopulated as the U.S., which ranks near the bottom of
the world’s nations in population density.
All that, though, is trumped by the constitution. It not only seats
naturalization power in Congress but also gives it almost total sway.
The founders discussed adding language relating to how long someone
must reside in America before becoming a citizen. In the end they
required of Congress only that its rule be “uniform.” They didn’t want
the states feuding over this and setting competing policies. They
wanted a united front to the world.
Nor, the record suggests, did they want the President setting policies
on immigration and naturalization. There may be talk about Obama having
presidential “discretion” in enforcing immigration laws, but the record
of the Constitutional Convention makes clear where the founders wanted
discretion to lie. “The right of determining the rule of naturalization
will then leave a discretion to the legislature,” James Madison quotes
Alexander Hamilton as saying.
Madison followed by remarking that he “wished to maintain the character
of liberality” that had been “professed” throughout the states. He was
not for open immigration. He “wished to invite foreigners of merit and
republican principles among us.” He noted that “America was indebted to
emigration for her settlement and prosperity” and added, “That part of
America which had encouraged them most had advanced most rapidly in
population, agriculture, and the arts.”
The Founding Fathers were not naive. They worried plenty about intrigue
by what Madison, at one point, called “men with foreign predilections”
who might “obtain appointments” or even seek public office. One can
imagine that they would be horrified by the loss of control of the
southern border, the lawlessness, the abuse of welfare and the scent of
rebellion north of the Rio Grande. But the founders also feared a
King–or a President who acted like one. They wanted the question of
immigration settled by Congress and wrote an impeachment clause that
glints in the fray.
Lipsky is the editor of the New York Sun
SOURCE: The Writings of James Madison, Volume IV
