Mises Wire

Judge Napolitano on Immigration and Birthright Citizenship

In his column today at LewRockwell.com, Judge Napolitano frames the immigration issue in light of the the right to travel. Napolitano notes:

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...

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.

Napolitano also notes that the US Constitution is very limited in this regard in general, contending that “[T]he Constitution itself — from which all federal powers derive — does not delegate to the federal government power over immigration, only over naturalization.”

Napolitano then tackles the issue of birthright citizenship. He disagrees with Ron Paul’s position (mentioned here) that there is legal room to move around on the birthright citizenship. Napolitano says no, and that the 14th Amendment is unambiguous on this:

In the [1880s], 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.

If Napolitano is correct here, then it would appear that attempts to get around birthright citizenship would require a constitutional amendment. Moreover, it appears that Napolitano is contending that the strict constructionist view is the Constitution confers no powers to the federal government over the regulation of immigration, but only over naturalization.

If this is indeed the case, then this highlights all the more the need to, as Robert Wenzel suggests, “build a wall around the welfare state.” As I’ve claimed in the past, the key problem here is not the free movement of individuals, but the free availability of taxpayer-funded benefits that act as subsidies to migrants. Ron Paul recently observed that citizenship is only even important politically when citizenship confers access to “free stuff.” That is, in an age when citizenship brought with it virtually no economic advantage, it did not matter greatly how it was controlled.

A good example of this might be the Colorado constitution of 1876 which had this to say about citizenship and voting:

“[The voter] shall be a citizen of the United States, or not being a citizen of the United States, he shall have declared his intention, according to law, to become such citizen, not less than four months before he offers to vote.” [Article VII section 1 (1876)]

That’s a pretty low bar to citizenship, and one that was not viewed as a problem at the time, even in a state where Spanish-speaking and German-speaking immigrants made up a significant portion of the population. Good luck trying to pass an equally laissez-faire rule for voting access in the US today. Also noteworthy is the fact that it was recognized at the time [i.e., the late 19th century] that states were primarily in charge of setting standards for voting in elections. As a practical matter, naturalization was highly decentralized in the 19th century, and stakes were low because citizenship brought with it virtually no access to welfare programs.

Since then, of course, the federal government has heavily centralized immigration and naturalization policy, regulating elections where states once had a central role, and forbidding states from restricting access to welfare programs, even when those programs are primarily funded by state taxes. 

One can make the case here, though, that with the exception of the true nativists — who think it is proper for governments to micromanage matters of culture and ethnicity —  the debate here is less over migration than it is over government benefits. Insofar as that is true, many who recognize the apparent incompatibility between open welfare and open borders have suggested a solution: anyone who comes to the border and wishes to enter may sign an agreement stating that he or she is ineligible for welfare. A signature on this contract gains free entry. Some others have made this same suggestion framed as a “blue card.” This is similar to a “green card” but provides economic freedom while excluding access to welfare programs. Ron Paul himself has suggested a special type of green card that does exactly this. Thus, the immigrant’s property rights and right to contract and travel are respected without conferring access to government benefits.

A recent study showed that 50 percent of immigrants are “on welfare.” Even if the study exaggerates these percentages, one could quite reasonably extrapolate from this that government benefits are indeed at least one factor in encouraging immigration. This is not hard to imagine in an age of easy communication between current immigrants and potential immigrants. If this is a problem, then the most straightforward way to deal with it would naturally be to lessen or eliminate the subsidy. The alternative is walls, police, deportations, and a bigger, more intrusive government.


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