Posted on 09/03/2015 7:42:04 AM PDT by Kaslin
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
What a twat. ILLEGAL IMMIGRATION! ILLEGAL IMMIGRATION! ILLEGAl IS ILLEGAL!
This guy doesn’t understand the issue
Sorry, Judge N. I have a lot of respect for Judge Napolitano, but he’s wrong here.
You can’t decouple natural rights from responsibility. When the government forces people to support invading aliens, regardless of their backstory, it is committing oppression. People have a natural right to life and liberty, and to self-defense and self-determination.
Napolitano’s interpretation would mean that what’s mine is theirs, but not vice-versa. Also, he’s a learned judge—why is he ignoring the discussion that occurred in Congress before passage of the 14th amendment? Why is he blowing off the “and subject to thereof” language?
Why not quote the Justice who said “The Constitution is not a suicide pact?”
Never figured he was on the establishment bandwagon....
All people who come here illegally to drop an anchor baby should immediately be deported. The kid can stay if the parents want him/her to grow up in institutional care or a foster home....
Nap is a libertarian who believes in open borders.
I would argue that the possession of a Mexican Consular card makes them effectively agents of Mexico, and not under American jurisdiction. “Invaders” may be a harsh term for most contexts, because it conveys a sense of violence, occupation and plunder. But in terms of the legitimacy of illegal immigration vis a vis the Mexican government, it is accurate. More the most part, these people aren’t fleeing their government; they are acting with the active support of their government. They do not intend to become Americans, but to change America’s laws and customs to suit their demands. And, inasmuch as most either receive taxpayer-funded benefits or send money home, and the Mexican government now relies on such relief, it may even accurately be said they do seek to plunder.
So you support birthright citizenship? Many birth tourists come here, have the baby, get the US passport for their child and then go back home with the child. The child is an insurance policy. He/she can return at 18 and be able to sponsor a spouse and children. At 21, he/she can sponsor the parents, siblings, uncles, aunts, etc.
We should eliminate birthright citizenship period.
Just because a kid is born here does not mean that the parents do not have the responsibility to take the kid home and raise it. whether birthright citizenship is real or not, people are responsible for their spawn and being a US citizen does not mean that the government has to raise you. You go with your parents.
Heck does this mean that when parents travel they can just drop their kids off with the government?
There. Fixed it.
Again, it IS NOT IMMIGRATION, it is invasion. These people are not here to stay and assimilate. They have no intention of learning our language, culture or anything other then directions to the welfare office.
This is an invasion and not only from the south, it is also coming from the mid-east. Using the term immigration is a distraction and not what is happening. As long as we keep discussing whether they are here as immigrants, legal or otherwise, we are being led astray from the facts of the issue.
Lets re-frame the issue to what it is and not some vague legal point.
So you are agreeing with me? I don’t understand your comment relative to my post.
He’s not so much “establishment” as pointy-headed, pie-in-the-sky, open-borders libertarian.
Sometimes their nutty “erase all government,” “erase all borders,” “erase all military,” “erase all law enforcement” notions are as unrealistic and dingbat utopian as those who were swayed into joining hippie communes.
Yes I am, and I was also including the person you were responding to although now I see I didn’t include them in the header.
ILLEGAL IS ILLEGAL IS ILLEGAL. And the libtards LOVE illegals for the reason set forth below.
The "progressive" left -- which either ignores or cannot deal with facts -- grasps this one quite well as it is integral to their plan to take complete control of the political system here. The vast proportion of these "immigrants" will immediately take advantage of the comfy welfare "hammock" the left has put in place, often AHEAD of indigenous citizens. These new welfare recipients will -- once the left does away with voter ID -- develop a warm/fuzzy feeling for and become supporters of the Democrats. When the system finally collapses under the burden (Cloward-Piven), the ensuing unrest and turmoil will soon have all of the poor, most of the now devastated middle class and much of the very wealthy leftists who created and will be orchestrating the mess demanding that someone RESTORE ORDER! And ORDER we shall have. But it will NOT be the sort most older citizens would recognize. The exceptions would be those from Germany, Soviet Russia under Stalin, Cuba under Castro...you get the idea!
Hey, if some @$$h@t illegal wants to have a baby here they leave, period. If they want to keep their child they can. We’re a compassionate people....
It’s a constitution, not a suicide pact.
WWPTD...? What would President Trump, do...?
Bingo! When I immigrated legally in 1966 i received a Green Card from the Immigration Office upon my arrival at Fort Dix after our plane landed when my husband was transferred from his duty station in Germany back to the states. I sure did not get my visa from the German Embassy, but from the American Embassy in Munich
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