Rule of Law Among Nations
He did, nonetheless, stress that the ius gentium – like all positive regulation – was the results of human will. A barely totally different variant of the regulation of nations argument is that the Define and Punish Clause provides Congress the power to forbid any acts that a overseas nation has a world legislation obligation to prevent, corresponding to using its territory to launch assaults in opposition to a neighbor.
Such a rule would have made each unauthorized border crossing a possible worldwide disaster. For the moment, the connection between the Define and Punish Clause and immigration legislation has only limited actual-world significance. Since the Chinese Exclusion Cases of the Eighties, the Supreme Court has held that Congress has inherent power to limit migration, despite the fact that it cannot be present in any particular provision of the Constitution. Living constitutionalists can embrace this theory (whose origins had been closely influenced by late-nineteenth century racism and xenophobia) without much concern about whether it fits the textual content or the unique meaning of the Constitution. But the dearth of any textual foundation for congressional energy over immigration should trouble originalists and textualists.
 Vattel, The Law of Nations, Book I, chapter VII. Return to Text.  Vattel, The Law of Nations, Book I, chapter VIII. Return to Text.  See, e.g., The Schooner Exchange v. McFaddon, eleven U.S. (7 Cranch) 116, 123 (1812); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 225 (1796); Miller v. The … Read More