The Last Three Installments by Robert Natelson at the Epoch Times About Invasion and Immigration Plus His Thoughts on Infinite Regress
Andrew Hyman
In the first and second parts of his recent five-part series at the Epoch Times, Rob Natelson addressed whether mass illegal immigration is within the Constitution’s term “invasion,” and concluded that it is, and that it therefore triggers federal and state responsibilities and powers described in the U.S. Constitution. This was also a primary conclusion of a forthcoming law review article that I coauthored with Rob. I already blogged here about the first and about the second parts of Rob’s series, and will now use this blog post to discuss the last three parts of his five-part series. At the end (below) are some thoughts that I’m passing along from Rob as regards a recent blog post here by David Weisberg about the challenge that “infinite regress” could pose to originalism.
Here’s an excerpt from Part III of Rob’s recent five-part series at the Epoch Times:
A state may take defensive measures associated with war but falling short of full-blown hostilities…. [Also,] a state under invasion may seek out hostile forces in their territory or in the state’s own territory. This means that if Mexico doesn’t stem the invasion, Texas may make forays across the border to attack those masterminding the assault. Besides killing invaders (if necessary), Texas may capture them, seize their property, and remove them to, and hold them in, any safe location. The state also may punish—even execute—those guilty of war crimes. Finally, if consistent with state law, Texas may prosecute for treason any of its own citizens caught assisting the enemy (Texas Constitution, Article I, Section 22). If those tactics sound extreme, they are. War—even defensive war—is extreme…. I hasten to qualify the foregoing in two ways. First, merely because the Constitution permits a course of action doesn’t mean that an invaded state should pursue it. Most of the illegal migrants are civilians seeking a better life. They should be deported, not mistreated. States should limit the use of deadly force to the invasion’s organizers and, if necessary, to any captives who refuse to comply with reasonable orders, including orders of removal. Second: There are various state actions traditionally associated with war that the federal government may not override. But there are other actions that are subject to federal “preemption.”
Here’s an excerpt from Part IV of Rob’s recent five-part series at the Epoch Times:
[T]he Constitution explicitly recognizes state authority to wage defensive war when invaded. This Part IV examines a particularly thorny problem: To what extent may the federal government interfere when states exercise their defensive war powers?… Federal preemption arguments have had more success than the Constitution justifies…. [T]he Constitution (Article I, Section 9, Clause 1) explicitly recognizes state authority over both voluntary migration and foreign commerce (in this case, referencing a particularly despicable form of foreign commerce—the slave trade)….[C]ourts sometimes void state laws on immigration as “preempted”—even when those state laws are broadly consistent with federal policy. In my view, this is a gross over-extension of the federal preemption doctrine. It seems to be based on the false notion that states have no authority over immigration at all and that federal power is “exclusive”… [T]he “exclusivity” claim is flatly wrong. The evidence—including the Constitution’s actual wording—is quite clear on this point: States may regulate immigration in ways broadly consistent with federal law. They also may regulate immigration when the federal government has not. Once the courts see that the exclusivity claim is wrong, they should allow states more latitude….
Some defensive state war powers shouldn’t be subject to federal preemption at all. During the debates over the Constitution, the document’s advocates strongly emphasized that states would have the right to defend themselves. For example, they affirmed that states would, except in specified circumstances, control their own armed forces. They also represented that states could suspend the writ of habeas corpus, thereby enabling them to hold prisoners of war without trial.… [D]uring the 20th century the Supreme Court stretched the central government’s incidental powers beyond recognition…. Fortunately, the Supreme Court is aware of the distortions caused by its expansion of federal powers, and sometimes tries to remedy it…. The court said a federal law couldn’t be “proper” if it “violate[d] the principle of state sovereignty” by dictating to a state the duties of its own 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 shouldn’t be subject to the whim of federal officials. Otherwise, those officials could (like the Biden administration) refuse to protect a disfavored state from invasion and then prohibit the state from defending itself as well.
And, here’s an excerpt from Part V of Rob’s recent five-part series at the Epoch Times:
This fifth and final essay recounts what we discovered about (1) the Constitution’s words “natural born Citizen” and (2) the claim that U.S.-born children of illegal immigrants are “birthright citizens”…. A foreigner from a friendly country legally staying in the British Empire and subject to local allegiance was called an “alien friend.” But if you entered the [British] Empire illegally, or your nation was at war with Great Britain, then you were an “alien enemy.” Unless you received special permission to stay, you weren’t in allegiance to the British Crown. You could forfeit your property and be forced to leave the country…. However, republics don’t have subjects. They have citizens. Whether you’re a citizen of a republic depends on the laws of the republic…. Still, allegiance remains very important, and it affects the meaning of several portions of the Constitution. Two examples are Article II, Section 1, Clause 5, which requires the president to be a “natural born Citizen,” and the part of Section 1 of the 14th Amendment called the Citizenship Clause.
Does birthright citizenship apply to the children of foreigners in the country illegally? Many people assume the answer is “yes.” That’s why some foreign women sneak across the border while pregnant to give birth on U.S. territory. They think their child will automatically be an American citizen. Agents of the U.S. government often operate on the same assumption…. 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”…. The history of the 14th Amendment tells us what “subject to the jurisdiction” of the United States means. It means that for a child to have birthright citizenship, his parents must be in allegiance to the United States. His parents can’t be invaders. They can’t be foreign diplomats…. The Supreme Court has confirmed what history tells us. In 1884, the court stated that “subject to the jurisdiction thereof” means “in allegiance to the U.S”.… Whether a child born in the United States of illegal immigrants is an American citizen hinges on whether the child’s parents are then in allegiance to the United States.
The aforementioned article by Rob and me reports a statement that was well known to the founding generation: no alien can “pay any Allegiance to any other Society, unless he be afterwards received into it.” That’s from Matthew Bacon’s New Abridgement of the Law which was the standard encyclopedia of common law in the 18th century. Thus, like ambassadors to the United States, illegal immigrants were not considered to have been received into American society, and so they could pay no allegiance to the U.S. unless and until being received into American society. An alien who was not received into American society was not entirely “in” the United States, and this was well known not just to the founders, but also to framers of the 14th Amendment like Senator Benjamin Wade (“foreign ministers who reside 'near' the United States, in the diplomatic language”). It is therefore likely that their children would not have been entitled to birthright citizenship even if the 14th Amendment had omitted the words “subject to the jurisdiction thereof.” This is true regardless of whether a foreign minister’s home country has allowed the U.S. jurisdiction to prosecute crimes committed by that foreign minister in the U.S. These remarks of mine about birthright citizenship are of course my own (I don’t know if Rob would agree).
Finally, Rob invited me to pass along the following response to the aforementioned blog post by David Weisberg:
Infinite regress is possible only if the researcher has no substantial background in 18th century discourse and has to rely on a dictionary to look up every word in every definition. However, competent originalist scholars make themselves familiar with 18th century discourse. In my case, for example, I've been immersed for many years in a vast array of official 18th century letters, newspaper reports, essays, legislative records, case reports, handbooks, legal treatises, and other material. I've also read the founding generation's educational canon and a fair amount of contemporaneous literature.
Once you are conversant with 18th century usage, you know which common words have changed meaning and which have not. The word "permission," for example, has not changed meaning. But even before beginning our "state war powers" project, I knew that one of the 18th century definitions of "hostile" was not commonly used today. It was necessary to consult a dictionary only to confirm and document this, because a law review editor wasn't going to just take my word for it.
I don't expect lawyers and judges who interpret the Constitution to make that kind of commitment to learning 18th century English. That's what scholars are for. Scholars should publish to provide accurate guidance. It is regrettable that so many legal writers publish before they have acquired the necessary tools---and not to provide accurate guidance but to influence.