penalties for the illegal immigrants and those who actually bring them in, but
does not authorize things like penalties for employers. The authority for the
former is the "Laws of Nations" clause, which is explained at
http://www.constitution.org/cmt/laws_of_nations.htm , and basically covers war,
peace, piracy, diplomacy, border security, and related matters. That clause
provides the authority for criminal punishment of making war without proper
authority, harming diplomats, crossing a border without permission, or preying on
shipwrecks, and provides the authority for arresting someone on a charge in a
foreign country, and extraditing him to that country, if we have an extradition
treaty. (The treaty alone could not provide that authority without the Laws of
Nations clause, because a treaty can't require the government to exercise
undelegated powers.)
In the Tenth Congress (1808) there was a debate over making things other than
treason crimes, such as conspiracy, and it was concluded, based on original
understanding, that the power to treat something as a crime did not authorize
making a conspiracy to do it a crime. See
http://www.constitution.org/ac/017/s10-1/treason.htm . So even if people conspired
to bring illegal aliens in, or aided them after they got here, they would not be
constitutionally prosecutable. It is less clear that "aiding and abetting" the
direct violations of the border, either before or after, could be prosecuted, but
it is not unreasonable to include that if it is very directly and proximately
related to particular violations. It would certainly be improper to penalize
providing humanitarian aid to illegals. I plan to participate in the Minuteman
Project, but if I encountered illegals who needed medical help I would certainly
help if I could. We don't want to hurt these people, most of whom are honest,
harmless people who just want a job. The problem is that too many of them are not
harmless, and some may be a threat to the lives of millions of Americans. We
should focus on that threat, because it overwhelms all other considerations. I am
sorry if that means a lot of nice people are excluded, but if we can't find a way
to effectively separate them from another, we will have to exclude them all rather
than risk suitcase nukes going off in our cities.
There is also no constitutional authority to require citizens to have and show an
ID card. This is because there is no such authority to require anyone to even have
a name, and one can't logically be required to present something one is not
required to have. (Some of my libertarian lawyer friends think this position is a
bit extreme, but logic is logic.) The only way we could get around that would be
to call up everyone as militia (and militia can be required to carry and present
ID) and keep everyone in a permanent called-up status, which was not contemplated
by the Founders.
The Founders didn't think of everything, but they did ratify the Constitution they
did, and we need to enforce the Constitution they actually adopted until it can be
properly amended.
It helps to know the historical context of the 1808 provision. It was linked to
legal changes occurring in England and other European countries. This from
http://www.daintycrew.com/slavetrade.htm
It wasn't until 1772 that Lord Mansfield came to a decision and proclaimed it
illegal to remove any person forcibly from England. The slave trade still
continued due to the fact that so many of the major political players in Liverpool
and such were heavily involved with slavery. One prime example was Richard Pennant
who was Liverpool's MP. He owned 8,000 acres of sugar plantations and over 600
slaves in Jamaica. He was in office between 1777 and 1780 then re-elected in 1784
to 1790. Three out of 41 councillors in Liverpool were slave ship owners or major
investors in the slave trade and during the years of 1787 and 1807, all 20 mayors
who held office in Liverpool financed or owned slave ships.
In 1808, over 100 years since the British Empire became involved in slave trading,
the Trans-Atlantic slave trade was abolished within the Empire and also in the
United States. It wasn't until 1827 however that Britain declares the slave trade
as piracy making it punishable by death. In 1833 slavery was abolished throughout
Europe and the Emancipation Act went through British parliament. It still took
another 11 years until 1838 before slavery was fully abolished within the British
Empire.
-- Jon
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-- Jon
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