Alien Friends Can Stay Only At the States Insistence

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Mandeville, LA – Exclusive Audio and Transcript – I have here in my hand a book called The Report of 1799 and 1800.  The Alien and Sedition Acts are famous, world famous.  Almost every American, people who listen to this show, have heard that.  The argument was whether or not the Congress could suspend the First Amendment and then confer upon President Adams the power to say, “I don’t like that, Frenchy.  I think he’s a threat and I’m going to have him arrested and thrown in Fort McHenry.”  The response from the Virginians, James Madison, et al., was that no, you can’t do that.  You don’t have the authority.  As a matter of fact, you don’t have the authority over any matter concerning friendly aliens in our midst here.  That’s what I’m going to read to you now.  Let’s go to the report.

 

Begin Mike Church Show Transcript

Mike:  I have here in my hand a book called The Report of 1799 and 1800.  The Alien and Sedition Acts are famous, world famous.  Almost every American, people who listen to this show, have heard that.  The argument was whether or not the Congress could suspend the First Amendment and then confer upon President Adams the power to say, “I don’t like that, Frenchy.  I think he’s a threat and I’m going to have him arrested and thrown in Fort McHenry.”  The response from the Virginians, James Madison, et al., was that no, you can’t do that.  You don’t have the authority.  As a matter of fact, you don’t have the authority over any matter concerning friendly aliens in our midst here.  That’s what I’m going to read to you now.  Let’s go to the report.

[reading]

One argument offered in justification of this power exercised over aliens is, that the admission of them into the country being of favour, not of right, the favour is at all times revocable.
To this argument it might be answered, that allowing the truth of the inference, it would be no proof of what is required.  A question would still occur, whether the Constitution had vested the discretionary power of admitting aliens in the federal government, or in the state governments.

[end reading]

Mike:  I’m about to answer your question, Andrew.  I’m not going to deal with the money aspect.  We’re just going to deal with who gets to decide whether or not said 850,000 aliens get to stay or leave.  We’re going to answer that question right now and settle this, or I’m going to let James Madison settle this.

[reading]

But it cannot be a true inference, that because the admission of an alien is a favour, the favour may be revoked at pleasure.  A grant of land to an individual may be of favour, not of right; but the moment the grant is made, the favour becomes a right, and must be forfeited before it can be taken away.  To pardon a malefactor may be favour, but the pardon is not, on that account, the less irrevocable.  To admit an alien to naturalization is as much a favour, as to admit him to reside in the country [Mike: When he says country, he means Virginia.  He doesn’t mean America, he means Virginia.]; yet it cannot be pretended, that a person naturalized can be deprived of the benefit, any more than a native citizen can be disfranchised.

Again, it is said, that aliens not being parties to the Constitution, the rights and privileges which it secures cannot be at all claimed by them.

To this reasoning, also, it might be answered, that although aliens are not parties to the Constitution, it does not follow that the Constitution has vested in Congress an absolute power over them.  The parties to the Constitution may have granted, or retained, or modified the power over aliens, without regard to that particular consideration.
But a more direct reply is, that it does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection.  Aliens are not more parties to the laws, than they are parties to the Constitution; yet, it will not be disputed, that as they owe, on one hand, a temporary obedience, they are entitled in return to their protection and advantage.

If aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial.  But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one-half may be also aliens.
It is said, further, that by the law and practice of nations, aliens may be removed at discretion, for offences against the law of nations; that Congress are authorized to define and punish such offences; and that to be dangerous to the peace of society is, in aliens, one of those offences.

The distinction between alien enemies and alien friends, is a clear and conclusive answer to this argument. Alien enemies are under the law of nations, and liable to be punished for offences against it.  Alien friends, except in the single case of public ministers, are under the municipal law, and must be tried and punished according to that law only.
This argument also, by referring the alien-act to the power of Congress to define and punish offences against the law of nations, yields the point that the act is of a penal, not merely of a preventive operation.  It must, in truth, be so considered.  And if it be a penal act, the punishment it inflicts, must be justified by some offence that deserves it.

Offences for which aliens, within the jurisdiction of a country, are punishable, are first, offences committed by the nation of which they make a part, and in whose offences they are involved: Secondly, offences committed by themselves alone, without any charge against the nation to which they belong.  The first is the case of alien enemies; the second, the case of alien friends.  [Mike: The people that are living here currently, you can say, are alien friends.  I’ll just throw that in.  I don’t believe anyone would argue to the contrary.]  In the first case, the offending nation can no otherwise be punished than by war, one of the laws of which authorizes the expulsion of such of its members, as may be found within the country, against which the offence has been committed.  In the second case, the offence being committed by the individual, not by his nation, and against the municipal law, not against the law of nations, the individual only, and not the nation, is punishable; and the punishment must be conducted according to the municipal law, not according to the law of nations.  Under this view of the subject, the act of Congress, for the removal of alien enemies, being conformable to the law of nations, is justified by the Constitution: and the “act,” for the removal of alien friends, being repugnant to the constitutional principles of municipal law, is unjustifiable.  ~James Madison, May 1799

[end reading]

Mike:  That should close the book on that.  Unless you’re going to say that these illegals are here and that they are alien enemies, then Congress does not have the authority to kick them out, and neither does Obama.  We’ve settled the question.  As far as the money goes, that could take four years and daily debates on the show for 20 minutes a day.

AG:  I agree.

Mike:  There is a distinction to be made, then, between alien friends and alien enemies.  You’ll note that Madison started his whole tirade off with did we confer the power of alien regulation to the general government?  The answer is when you’re dealing with alien enemies, yes, we traded it all.  Congress must make uniform rule to deal with treason and sedition and what have you, when invasions have incurred.  Yes, that is correct.  Did the states surrender their municipal police power authority over alien friends?  The answer is no, an unequivocal no.

That should settle who gets to decide whether or not the 850,000 aliens are going to stay in your state.  It’s up to you, in other words.  It’s not up to Obama and it wasn’t even up to the act of Congress.  That’s not me saying that.  As I just demonstrated to you, ladies and gentlemen, this is what’s called referring to source material.  I don’t think that James Madison is an ideologue or a crank.  He’s trying to settle the issue and he’s leaving us a brilliant historical framework under which to do so.  I would suggest we ought to pay attention to the man.

End Mike Church Show Transcript