By Ryan McMaken*
In recent years, Judge Andrew Napolitano has annoyed some anti-immigration activists by pointing out what the text of the US Constitution seemingly makes clear: “[T]he Constitution itself — from which all federal powers derive — does not delegate to the federal government power over immigration, only over naturalization.”
Napolitano isn’t the first one to point this out, though, and those who have been observing this debate for a long time, will remember that this has been a simmering debate among conservatives and libertarians for many years. Making the case that the text does support federal intervention in immigration is especially important to conservatives who support an “originalist” view of the Constitution. After all, if it really is the case that the original intent of the Constitution was not to empower the federal government to regulate immigration, then it would be impossible for these originalists to support ongoing federal immigration interventions without being accused of hypocrisy or inconsistency.
In response, originalists have suggested a number of theories, including the assertion that the Migration or Importation Clause grants this power. Ilya Somin has effectively dismantled this claim in his 2016 article on the topic.
Other far-less-sophisticated claims have been made as well, such as the claim that immigration is the equivalent of a military invasion, or that naturalization pretty much means the same thing as immigration. Rarely are these claims convincing to observers who are not already vehemently anti-immigration.
With this essay, however, I want to largely ignore modern legal debates and instead approach the originalists’ claim by looking at how nineteenth-century American policymakers themselves viewed the proper role of the federal government in restricting immigration.
At this point, you can probably already guess where I’m going with this: it turns out that if we look at immigration regulation and legislation in the first century of the United States, we find that federal involvement in regulating immigration was very rare, and that attempts to federalize the matter repeatedly failed in Congress, where federalization was often regarded as being of dubious Constitutionality.
During this period, it was the states that dominated in terms of regulation of immigrants, and state governments were considered to be well within their rights when it came to the regulation — and even deportation — of immigrants.
State and Local Regulation of Immigrants
It is not until the 1880s that we see the national government displace the states as the primary enforcer of immigration law. And even then, states continued to work in cooperation with the federal government. It was not until the twentieth century that the federal government began to insist that it had a monopoly on immigration law, and that the states were excluded from exercising their own powers in the matter.
In his lengthy article on “The Lost Century of American Immigration Law” in the Columbia Law Review, Gerald Neuman notes that state and local law had been used to restrict migration in the North American colonies — and later the United States.
The legal framework employed had its origins in English poor laws that restricted the movements of paupers, vagabonds, and other alleged undesirables. Neuman notes that after independence, local governments in many places retained control over settlement:
After 1794 [in Massachusetts], persons newly arriving in a town became settled inhabitants if they met certain statutory criteria, such as property ownership, or if they received express permission of the town government.
The idea was to prevent the permanent settlement of any persons who were likely to become reliant on local charity efforts, or who might be criminals.
These restrictions, in fact, were acknowledged and written into the Articles of Confederation in which Article IV states that states retained the powers to limit the movements of “paupers, vagabonds and fugitives from justice.” Neuman further contends that “Although the Constitution omits this qualification from its Privileges and Immunities Clause, the courts continued to assume that paupers had no right to travel.”
Historical experience in the states confirms that restrictions on free travel did not go away with the new Constitution, and indeed new restrictions on incoming migrants from outside the US were introduced.
In his study on state-level immigration laws, Expelling the Poor: Atlantic Seaboard States and the Nineteenth-Century Origins of American Immigration Policy, Hidetaka Hirota focuses especially on state laws in Massachusetts and New York where the matter of expelling and limiting new migrants was a matter of perennial concern:
To reduce Irish pauperism, New York and Massachusetts built upon colonial poor laws for regulating the local movement of the poor to check the landing into the state of destitute foreigners. In Massachusetts, an exceptionally strong anti-Catholic and anti-Irish tradition inspired the state legislature to go beyond merely setting entry regulations or excluding the unacceptable. Rather, Massachusetts developed laws for deporting foreign paupers already resident in the state back to Ireland or to Britain, Canada, or other American states. Between the 1830s and the early 1880s, at least 50,000 persons were removed from Massachusetts under this policy. State policies applied to all destitute foreigners, and German immigrants attracted their fair share of nativism. Those expelled from Massachusetts also included American paupers who originally came from other states. Yet it was Irish poverty that generated the principal momentum for the growth of state immigration policy.
Given the fact that Boston and New York were such popular destinations for the Irish during this period, these two states were the most active in instituting immigration controls. Other states engaged in some efforts, although as Hirota notes:
…Maryland and Louisiana had little interest in restricting European immigration throughout the nineteenth century, while Pennsylvania and California failed to establish sustainable systems of immigration regulation.
It was these laws that led to some of the earliest legal decisions in the US as to the role of the federal government in immigration law.
Early Supreme Court Cases
Early legal cases illustrated a reluctance on the part of the court to assert federal control of migrants.
In New York v Miln (1837) for example, the Court took up the matter of whether a state could require a docking ship to “to provide a list of passengers and to post security against the passengers from becoming public charges.” The strategy of bonding was often used in which ship owners were forced to post a bond under which the state could be compensated in case the new migrants arriving in said ship turned out to be criminals or paupers dependent on the state.
The court sided with the state, concluding the state was entitled “to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possible convicts, as it is to guard against the physical pestilence, which may arise from unsound and infectious articles imported.”
However, regulation of immigrants was acceptable to the court so long as the regulation was “not a regulation of commerce, but of police.” That is, the court ruled to overturn the state’s ability to impose what were essentially taxes on shipping, while concluding that the state and local governments nevertheless retained to right to regulate the immigrants themselves. This included the right to refuse entry to new migrants perceived to be paupers, criminals, mentally ill, or carrying communicable diseases. As Hirota recounts, these “police powers” resulted in many deportations conducted by state officials.
Moreover, in the “Passenger Cases” of 1849, a fractious court again declined to limit state police powers in regulating immigrants. The majority “consensus” which consisted of several different concurring opinions, struck down state efforts to collect taxes and fees designed to fund state efforts at monitoring and controlling migrants. These taxes were ruled to be against the federal powers of regulating maritime law and international shipping. The court failed to establish overall federal supremacy on the matter of immigration, however, and Justice Levi Woodbury emphasized the point in his dissenting opinion:
[I]t is for the State where the power resides to decide on what is sufficient cause for it,whether municipal or economical, sickness or crime; as, for example, danger of pauperism, danger to health, danger to morals, danger to property, danger to public principles by revolutions and change of government, or danger to religion.
Similarly, according to Neuman, Justice “Peter Daniel invoked at length the Jeffersonian polemics against the Alien Act of 1798 to demonstrate that power over the entry of aliens was vested exclusively in the states.”1
These cases came in the wake of more notorious episodes during the 1820s and 1830s in southern states in which some states prohibited free black sailors from coming ashore in port cities. Fearing the presence of free blacks would incite slave uprisings, some southern states — but most vigorously South Carolina — essentially adopted “quarantine” laws in which free black sailors were required to stay on their ships or be held in the local jail until they departed again out of port. Captains of British ships, which sometimes employed free blacks from British colonies, complained to federal authorities. Ultimately, however, the federal government was unwilling or unable to take steps that ended these policies.
Restricting State-to-State Migrants
The issue of race colored other restrictions on migration as well. Some states, both north and south, adopted laws designed to restrict the movement of free blacks from states to state. Michells Slack points out
the Oregon Constitution of 1857, although prohibiting slavery and involuntary servitude, 35 also prohibited the entry or presence of any “negro or mulatto” not already residing in the State at the time of its adoption. Moreover, most free black residents were required to register and prove both their free status and their right to residence within the state. In turn, such documentation was regularly demanded of free blacks under threat of expulsion.
The State of Illinois also imposed penalties for facilitating “entry by a mulatto.”
In southern states, the situation was more focused on re-entry. Neuman writes:
In slave states, the mere visibility of black people living in freedom was regarded as a grave threat to the operation of the system of slavery. Moreover, slaveholders feared that free blacks would foment or facilitate escape, or conspire to bring about slave revolts.
Slave state legislation usually barred the entry of free blacks who were not already residents of the state. Penalties were often imposed on persons bringing in free blacks. Over time, some states extended these prohibitions to their own free black residents who sought to return after traveling outside the state, either to a disapproved location or to any destination at all. Slave states often required that emancipated slaves leave the state forever, on pain of reenslavement.
Although these laws were bound up with slavery and race, they nevertheless established both in the courts and in legislatures that states had the prerogative to prevent entry of certain persons into the states. Political realities, of course, meant there was mostly free movement between states.2
Congress Shows Little Interest in Regulating Immigrants
Meanwhile, Congress largely ignored the immigration issue beyond regulating naturalization, as mandated in the Constitution.
The 1911 report from Congress’s Dillingham Commission on immigration recounts that legislation addressing immigration during the mid-nineteenth century was minimalist, to say the least. The commission notes that most agitation for new immigration legislation stemmed from the Native American Party, also known as the “Know-Nothings.” These efforts failed due to a lack of interest by federal lawmakers in regulating immigration, and also due to doubts about whether or not such efforts were even constitutional. A lengthy quotation from the Commission’s report helps illustrate the Congress’s inaction on the matter:
On January 2, 1855, Representative Wentworth, of Massachusetts, introduced a bill to prevent the introduction of foreign paupers, criminals, idiots, lunatics, and insane and blind persons, but it was laid on the table by a vote of 68 to 83…
February 17, 1855, Senator Jones, of Tennessee, evidently believing it useless to try to pass an act excluding undesirables, sought to have Congress agree to give the matter entirely over to the States, and presented the following resolution, which was quickly tabled:
Whereas the Constitution of the United States confers on Congress the power to establish a uniform rule of naturalization and is silent as to the exercises of any power over the subject of immigration; and Whereas it is declared in the Constitution that all power not delegated to the constitution nor prohibited to the states by it are reserved to the States respectively or to the people:
Therefore Resolved, that Congress has no power to pass any law regulating or controlling immigration into any of the States of Territories of the Union; but that the power to prescribe such rules and regulations touching this subject as may be deemed necessary to the safety and happiness of the people belongs to the States respectively or to the people, and that each State may determine for itself the evils resulting from the great influx of criminals and paupers and apply such remedy as their wisdom may suggest for their safety demand.
Again on March 4, 1856, Mr. Smith, of Alabama, introduced a bill to exclude foreign paupers and criminals. This bill required United States consuls to issue certificates to all persons intending to come to the United States, stating that they were not paupers, nor convicts, and that they were coming of their own accord and were not sent out of their own country by any society or authority whatsoever…
The law failed. Meanwhile, the Committee on Foreign Affairs issued a report on Congressional concerns about European nations dumping undesirables in the United States. But, the committee “seemed to doubt the power of Congress to regulate the matter, so almost all their recommendations were to the States…”
The lack of federal action on immigration matters led the Commission to conclude that it was until the 1860s that “the change of control of immigration from the various States to the National Government” began to take place.
The Federalization of Immigration Policy: the 1870s and After
As with so much else following the Civil War, what had been long accepted to be state policy began to be federalized, and in 1872, President Grant sent a message to Congress claiming that when it came to immigration, “I see no subject more national in its character…”
Hirota concurs with this assessment of latter-day federalization, noting that:
The federalization of immigration control was therefore a gradual process at best, and the actions of officials in the northeastern states set the conditions for the introduction of general deportation by the federal government in 1891.
The nationalization of immigration regulation technically reached completion in 1891. Responding to the inefficiency of state-federal joint administration at Castle Garden revealed in legislative investigations, Congress passed a new immigration act in March 1891. The act placed issues of immigration under the control of the federal superintendent of immigration in the Treasury Department and appointed federal commissioners of immigration at major ports, replacing state enforcers with federal employees. … The 1891 law also expanded the excludable category to cover people with mental defects and insanity, paupers and people “likely to become a public charge,” people with contagious diseases, people convicted of a felony of other crime involving “moral turpitude, polygamists, and assisted emigrants” — making all of them deportable.
The 1891 act came at the end of decade of growing federal action on immigration which included the Chinese Exclusion Act and more general legislation soon afterward. By the time this was taking place, however, many state governments, especially those in Massachusetts and New York were inviting more federal involvement in immigration control. Hirota continues:
Officials in both New York and Massachusetts fundamentally influenced the development of national immigration policy in the late nineteenth century by playing a central role in the making of the federal Immigration Act of 1882. Passed three months after the enactment of the federal Chinese Exclusion Act of 1882, which suspended the immigration of Chinese laborers, the Immigration Act was the first general legislation that applied to all foreigners at a national level and set the groundwork for subsequent federal immigration laws. … Modeled on existing immigration policies in New York and Massachusets, these provisions came form a draft bill that the two states’ officials created. In addition, the act left the enforcement of its provisions in the hands of the state officials.
Here we see that even in the 1880s, federal immigration laws continued to rely on local enforcement, and state and federal officials were seen as partners in regulation of migrants.
It would not be until the twentieth century that the federal government would begin to claim sole legal authority over matters of immigration.
That most of this legislative history is today forgotten would be an understatement. This led Neuman in 1993 to refer to a “myth of open borders” in which it has been long assumed, even by the very learned, that borders in the United States were essentially open with few to no attempts by governments at any level to control the flow of migrants either into the United States, or across state borders.
Michelle Slack notes that even among those who are aware of this legislative history, there have still been attempts to claim that no deportations of any consequence took place. As the work of Hirota has shown, this was not the case.
This is not to say that there were not also attempts to increase immigration to the US in numerous cases. As I have shown in the past, many frontier states adopted policies designed to attract migrants by offering an easy road to citizenship, and by adopting multiple “official” languages designed to accommodate a non-english-speaking population.3 Indeed, pro-immigrant sentiment mid-century was sufficient enough for President John Tyler to publicly declare in 1841: “We hold out to the people of other countries an invitation to come and settle among us as members of our rapidly growing family, and for the blessings which we offer them we require of them to look upon our country as their country and unite with us in the great task of preserving our institutions and thereby perpetuating our liberties.”
It must be understood, though, that by “people of other countries,” Tyler did not mean all those categories of paupers and other undesirables outlined in state statutes. He meant people other than the disabled, ill, impoverished, and criminally inclined. Indeed, while Emma Lazarus was penning her famous poem “The New Colossus” in 1883 — which claimed the US welcomed the world’s “wretched refuse” — both the federal government and the states were at work enforcing legislation specifically designed to reject this alleged “refuse.”
This effort to exclude undesirables, however, illustrates a fundamental difference between nineteenth-century immigration legislation and modern legislation. As Neuman observed “[n]either Congress nor the states attempted to impose quantitative limits on immigration” [emphasis in the original].
Legislation focused instead on refusing entry to those who were seen as likely to increase the government-assistance rolls or who might commit criminal acts. Creating arbitrary quotas for the total number of legal immigrants was a later innovation.
No Evidence of Early-American Federalization of Immigration Policy
None of the information in this essay, of course, has much to say in regards to those who employ non-originalist arguments in favor of federal control over immigration. Those who believe that the Constitution is a “living document,” or that expansive federal powers are a good thing in most every circumstance, would not be stymied in their claims by the fact that nineteenth century Americans rejected federal primacy in the matter of immigration. For many non-originalists, immigration is just another case where the evolution of the federal courts is to be welcomed.
Considering the legislative history on the matter, though, it’s difficult to see much to support originalist claims that immigration has always been the proper domain of the federal government, or that this position has long been accepted even by staunch defenders of constitutional federalism in the United States. To come to this conclusion, one must ignore repeated refusals by both Congress and the Federal Courts to assume control of the immigration situation during the first century of the United States. Even less believable is the claim that immigration is exclusively a matter for the federal government, and that states are necessarily out of bounds when adopting immigration regulations in conflict with current federal law.
To be sure, the political realities of the nineteenth century don’t “prove” that the original intent of the Constitution was to greatly limit federal involvement in immigration regulation. It could simply be that nearly everyone was misinterpreting the text during most of the nineteenth century, and that now proponents of greater federal control have it right. Nevertheless, outside of the Federalists who supported the hated Alien and Sedition Acts, there’s little evidence of policymakers from the “founding” generation calling for more federal control in the matter. This general neglect of the issue continued into the late nineteenth century. Contrary to some claims that immigration simply wasn’t an issue in the nineteenth century, the existence of numerous state laws on the matter show that it was an important issue. And yet few sought federal control. One would think that if the Constitution were clear about federal control of immigration, this would not have been the case.
About the author:
*Ryan McMaken (@ryanmcmaken) is the editor of Mises Wire and The Austrian. Send him your article submissions, but read article guidelines first. Ryan has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.
This article was published by the MISES Institute.
- 1. Some originalists have claimed that the passage of the Alien and Sedition Acts proves that the federal government has Constitutional authority over immigration. The Jeffersonians, of course, disagreed vehemently. The loss of the Federalists to the Republicans in 1800 essentially destroyed the pro-federal, anti-immigration position for decades, during which time federal immigration control was associated with the overreach of the Federalist Party, and contrary to the more strict Constitutional views of the Jeffersonians.
- 2. Although claiming to favor “states rights” slave masters demanded greater federal action on the matter of fugutive slaves. Significantly, when South Carolina seceded form the Union, it cited insufficient federal action on the matter of returning fugitive slaves to bondage.
- 3. See: “In the 19th Century, Non-Citizens in the US Could Vote in 22 States and Territories” (https://mises.org/wire/19th-century-non-citizens-us-could-vote-22-states-and-territories)