Regarding my previous post on the Trump-dictated ban on people from Muslim-majority countries from entering the U.S. and my asserting that such a ban was unconstitutional, I wasn’t particularly specific on how exactly such a ban is unconstitutional.
I think that the most important reason why federal government travel bans — or any controls on the movements of millions of people — are unconstitutional is that, as Judge Andrew Napolitano pointed out, the U.S. Constitution doesn’t delegate power over immigration to the federal government. The Constitution just doesn’t authorize the federal government to have a central-planning bureaucracy which attempts to control the movements of millions of people. If you want to look at the specific discussions on that, you can click on law professor Ilya Somin’s essay (and he has also written on those arguments here and here). Prof. Somin also writes for the “Volokh Conspiracy” blog at WaPo.
But the extremely flawed, inconsistent and self-contradictory Constitution is also in part contradictory to the Declaration of Independence. In my previous post I referred to the Declaration of Independence and the Constitution’s Bill of Rights. There have been occasions that U.S. Supreme Court Justices have cited the Declaration of Independence in their decisions, including stating that “it is always safe to read the letter of the constitution in the spirit of the Declaration of Independence,” and so on.
And in my referencing the Bill of Rights in my previous post, I didn’t mention where specifically it notes a “right to migrate,”or a “right to travel or freedom of movement.” I think we can assume that when the Declaration of Independence asserts the unalienable rights to “life, liberty, and pursuit of happiness,” included in that right to “liberty” is the right to travel and freedom of movement (as long as one doesn’t violate the liberty, person or property of another).
But where do we see such rights in the Bill of Rights? We don’t. The Bill of Rights can’t possibly enumerate all the rights that human beings have. That is why the writers of the Constitution included the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And remember, when the Founders referred to “rights,” most of them had a belief that people had “natural” or negative rights, rights which preexisted the formation of government. They didn’t believe in “positive” rights i.e. entitlements, such as a “right to education,” or a “right to health care,” or otherwise a right (or entitlement) to have something provided to one by others.
Throughout the years, I have seen utter contempt from both the left and the conservatives for the Ninth Amendment. The collectivist majoritarian-moralist anti-private property judge Robert Bork, who thankfully was voted down by the U.S. Senate for Supreme Court, arrogantly called the Ninth Amendment an “inkblot.” His contempt for private property included statements such as, if the majority of a community were anguished by a private behavior within someone’s home (albeit voluntary and consenting), then the majority of the community had a legitimate right or power to legislate against such behavior (within someone’s own private property), and have the armed government police enforce that legislation.
But the Ninth Amendment really is the part of the Bill of Rights that most protects the right of self-ownership of the individual, in my view. Many people believe that if a “right” is not listed in the Bill of Rights, then therefore it is not a right. Nope. And as I wrote in my previous post, the rights mentioned in the Bill of Rights are rights that are not given to us by government, by rights that we have inherently that government may not violate. Those rights are unalienable rights that ALL human beings have, and which apply to all people, not just American citizens. A lot of people don’t like that idea, because they view the importance of “citizenship” like a membership in a private, exclusive club. They are collectivists who believe in a common, community ownership of the entire territory as though it is a large parcel of private property not to be trespassed by outsiders.
And as far as private property rights are concerned, if I were a business owner and I received an application for employment from someone, part of my private property rights is the right to invite that applicant onto my property and into my business and if I think he’s the best one for the job I will have him stay there and employ him, from wherever he comes from. When the immigration restrictionists want to interfere with those private property rights, they are saying that they don’t believe in private property rights, as well as freedom of contract and freedom of association. You have to either believe that the property owner has full absolute sovereignty and authority over his own property or, if you believe that the owner must get a bureaucrat’s approval of whom to invite on one’s own property, then you are acknowledging your belief that the ultimate owner of the property is not the official owner as written on paper, but the government. There’s no grey area there, it’s either-or.
And as far as self-ownership is concerned, if you believe that a traveler must get a bureaucrat’s approval to travel, or where one may travel or not, then you can’t claim to believe in the idea of self-ownership, but that the ultimate owner of the people is the government. And I believe that the Ninth Amendment protects both private property rights and the rights of the individual to self-ownership.