Sovereignty as applied to Land
On another blog where I sometimes comment, one of the authors posted an entry regarding immigration that I found interesting.
The conclusion of the article was:
A law regarding illegal immigration has to be something that applies to us—what we can do, should not do, or ought to do. It can’t deal directly with this abstracted person that is not even subject to our law.
So, I suppose we have reached rock bottom finally. The question, “who is an illegal alien?” is answered by, “someone that does not have papers, whom we therefore have the right to put on a train.”
This comment is obviously wrong. An illegal alien is a person who is in our country without permission. It's much the same as tresspass on land. A trespasser is (generally speaking) anyone who is on one's land without permission. Of course, even if the harm of illegally being on the land is remedied, the guilt remains.
Let's imagine we have farmer. We'll call him Tim. He lives an a country, which we'll call TS (Tim's State).
Suppose, for the sake of the argument, that Tim lives on the border between TS and adjacent country, which we'll call NTT (Next to Tim).
If a person (we'll call him Mike) is standing in NTT and thinking about walking across Tim's land, that person is an inchoate trespasser. Mike has not done Tim wrong yet, he's just thinking about. Maybe Mike has even put on boots and a rucksack and is headed for Tim's land. He is still an inchoate trespasser. Finally, when Mike's boot first touches Tim's dirt (or, more likely, enters the airspace above Tim's land), he becomes a trespasser, because Tim has not given him permission. Likewise, if TS has not given Mike permission to enter TS, then Mike has simultaneously become an illegal alien.
Suppose instead, that Tim had invited Mike. Well, in that case at touchdown, Mike would not be trespasser, but only an illegal alien. Similarly, if Mike had been granted visa by TS, then Mike would be only a trespasser and not an illegal alien.
There is only parcel of land! How is this possible?
The answer is that there a bundle of rights associated with the land. There are the rights that belong to Tim as landowner and there are rights that belong to TS as sovereign of the state.
If Tim were an absolute monarch, all those rights would be bundled in the possession of a single person.
If Tim were a tenant, renting the land, his rights would be distinct from those of the landowner. If Tim were a joint tenant, renting the land with a partner, his rights would still be a lesser part of the bundle. Finally, if Tim were just a guest, visiting the property, his rights would be practically zero.
In America, no one has all the rights bundled like an absolute monarch would. The "every man's home is his castle" maxim, is a pleasantry, not a reality. In a typical scenario, (leaving aside tenants and guests) a landowner has a big chunk of rights in the land, the local government (such as the city, township, county, or the like) has another set of rights in the land (think zoning rules, the right to tax the land, and so on), the state government has another set of rights in the land (think, for example, of the right to enter to enforce the laws of the state), and the federal government has another set of rights (think, for example, in this case - the right to decide who is present within the country).
The right of a state to determine who is within her borders is ancient. It was already firmly rooted in the Middle East in the time of Moses. Recall how Moses sent spies into the promised land, and how some countries refused to let the Israelites pass through their land, even along the public highway.
Given that background, I cannot see how the commenter described above can possibly presume that immigration laws cannot relate to a person being welcome or unwelcome but only with our right to remove the person.
Perhaps the commenter will explain ... who knows.