There was a time in America’s history when we couldn’t find enough people to come to our shores. We had people who came from every corner of the world. The Constitution is verbose on naturalization, but silent on immigration. We originally let the States fashion their own immigration policies. The states were not prohibited from naturalizing citizens within their borders. In Article 1 Section 10, which enumerates the prohibitions placed upon the States, you will not find language that prohibits the naturalization of state citizens.
Let’s use a crude allegory to describe the principles that should govern immigration. Let’s imagine an apple orchard and a heavily trafficked road next to it, filled with travelers of every description and economic condition. Some of these travelers are the famished and the weary. When they arrive at the orchard and see no barrier between them and the apples, they walk over to help themselves. When the orchard owner notices that some of his trees are almost barren should he fault the travelers or should he fault himself for not building a fence? I would think the answer is obvious.
There are two principles at play: the first champions humane treatment, and it supersedes the second, that of national security. I would hardly think that any of us here would expect the orchard owner to round up those who had helped themselves to his apples and force them to reimburse him. It would be inhumane, let alone impractical. Let me briefly run through the evolution of US immigration policies.
The Naturalization Act of 1790 first established the rules for naturalized citizenship, as per Article 1, Section 8 of the Constitution, but placed no restrictions with respect to immigration on the States. It was repealed and replaced by the Naturalization Act of 1795, which increased the required period of residence from two to five years. Pay particular attention to the language that places the burden of vetting persons squarely on the States: And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.
That Act was repealed and replaced by the Naturalization Act of 1798, which extended the residency requirements to fourteen years. It also authorized the president to deport any alien considered “dangerous to the peace and safety of the United States.” It was repealed and replaced by the Naturalization Act of 1802, which contracted the residency requirements to five years and required the alien to declare, at least three years in advance, his intent to become a U.S. citizen. Then, the Naturalization Act of 1870 extended the naturalization process to “aliens of African nativity and to persons of African descent.”
We presented you with this annotated history to elucidate the obvious: Immigration policy is malleable, and perhaps, for the first time, if, as and when the implementation of Direct Democracy becomes a reality, a matter which should reflect the Will of the People through a plebiscite.
The extenuating factor is that, back in the day, neither the States nor the Federal Government offered any inducements by way of social benefits for immigrants. After certain states passed immigration laws following the Civil War, the Supreme Court in 1875 declared that immigration was a federal responsibility and, for the first time, federal immigration law prohibited the entry of immigrants considered as “undesirable”. America went from “Everyone is welcome” to “Some are welcome, others not so much.” The Page Act of 1875 law classified as “undesirable” any individual from Asia who was coming to America to become a contract laborer, and it fined any human trafficker up to $2,000 and a maximum jail sentence of one year. What followed next mirrors to a certain extent what America is experiencing with Latino immigration.
In 1882, The Chinese Exclusion Act, in response to anxieties over cheap labor from China pouring in, restricted immigration of Chinese laborers for ten years, prohibited the naturalization of Chinese – even those who had arrived earlier legally – and provided deportation procedures for illegal Chinese. This Act was repealed in 1943. But, this was the birth of illegal immigration.
In 1885, the Alien Contract Labor Law extended its reach and prohibited the trafficking of foreigners and aliens under contract or agreement to perform labor in the United States. We must understand that up until that time there was no way to enforce any of these laws. They were simply statutes without teeth. There was no central agency that coordinated Immigration. It wasn’t until the Immigration Act of 1891 that a Bureau of Immigration was set up in the Treasury Department with the mandate and directive to deport illegal aliens. As we approached the modern era, further inadmissible classes were added to exclude anarchists, people with epilepsy, beggars, and purveyors of prostitution, courtesy of the Immigration Act of 1903. The Equal Nationality Act of 1934 is worth examining. For the first time, foreign-born children of American mothers and alien fathers who had entered America before age 18 and lived in America for five years could apply for American citizenship – foreshadowing DACA.
In the 1930s, we had an influx of Japanese picture brides and deportation of Mexican-Americans, even some children who were US citizens. Conditions have not changed that much over the years. We face the same hurdles now that we faced in the thirties. The advantage this generation has is biometric technology, which can be used to verify citizenship. Without its implementation, we will be discussing the same issues in the year 3,018.
History has a way of repeating itself. Even with the best technologies on hand, there will always be those who will circumvent the system. But, I wish to focus on the humane principles that should govern and supersede our immigration policies. At some point the orchard owner needs to take responsibility. We must ask ourselves the question, and discuss it heartily and passionately: At what point is it inhumane to deport people who, for economic or political reasons arrived in the US, set roots, assimilated, contributed, upheld the law, acquainted themselves with the nation’s history and its politics, and otherwise lived productive, exemplary lives? Clearly, I would think, we do not have a problem with deporting someone who has not set roots or who has broken our laws and defrauded the system. But, I am almost certain, that we would have a big problem uprooting individuals and families who have lived model lives. Aren’t these the kind of people we would want in our neighborhoods? I cringe when I look back at some of our policies, such as Operation Wetback. I also have no problems uprooting communists, no matter how well rooted they are, which the McCarran-Walter Act of 1952 tried to do, and which we should continue to invoke, especially when vetting politicians running for office.
Then, comes the final arbiter, and we conclude where we began with the Constitution, which is the supreme law of the land and trumps any and all Immigration Acts. We come to the Fourteenth Amendment that treats citizens and aliens equally under the law. In Pyler v. Doe, 457 US 202, the court stated that illegal immigrants are “within the jurisdiction” of the states in which they reside and, therefore, are under the equal protection laws of the fourteenth amendment, and stated, “We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized [457 U.S. 202, 212] that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority.”
Immigration is more about a ‘common sense’ than about edicts. Is the orchard owner encouraging trespassers by setting tables, chairs and beds around his apple trees? When a state permits undocumented persons to open a bank account, to obtain a driver’s license, to obtain a Tax ID Number, and, through other adhesion contracts, otherwise facilitates the setting of roots, is it or is it not humane to uproot such individuals?
As it stands, our system is inhumane. We place greater value and importance on an uninformed, uneducated, unengaged electorate, and the attending corrupt political system that supports corporate welfare, than we do on succoring our poor and those we have permitted, through our own complicity and our inducements, to set roots. Not that citizenship really means that much to indigenous, natural-born Americans, we might argue. How many know anything about their civics, history or Constitution? Should that be the litmus test of citizenship, perhaps, after all is said and done? What constitutes citizenship?
On a different note, the melting pot of America is a bastion of Freedom. Can the same be said of Israel or Saudi Arabia or China? How many churches are in those countries? How many synagogues?”