Monday, July 23, 2018

If you are really a strict constructionist, all immigration laws would be unconstitutional

Matthew Yglesias touched on one of my pet issues. If you are a "strict constructionist" there is no authority for Congress or the President to limit the ability to cross U.S. borders. The founders had no notion that immigration should be regulated and so that was not a power they put in the Constitution. For the first 100 years of this country, the U.S. had open borders. The very first restriction on immigration was the Chinese Exclusion Act of 1882. That Act, and all subsequent immigration restrictions have been based on the idea that Article I, Section 8, Clause 3 allows Congress "To regulate commerce with foreign Nations" and that "commerce" includes the movement of people, not just goods. As a believer in the living constitution, I can see the merits of that argument. But for people stuck on the idea that the constitution should only be interpreted with the original intent of the document, immigration laws are pretty indefensible.

But for some reason those original intent conservatives never seem to clamor for open borders.