Political scientist Anna O. Law is one of the leading experts on the history and development of American immigration policy. Perhaps because of the disciplinary gap, legal scholars and commentators haven’t given her work as much attention as they should. Her new book builds on her previous scholarship and that of others to bring together three interlinked topics that are usually considered separately: the development of immigration law and policy in the early republic, policies on slavery and internal migration, and policy towards Native Americans.
Law makes the by-now familiar point that, during the first century of American history, power over international migration overwhelmingly resided in the hands of state governments, rather than the federal government. In a more novel and distinctive move, she links this to the desire of many Founding-era Americans and subsequent generations to preserve state authority over internal migration, slavery, and dealings with Native Americans.
Southern slave states sought to retain control over importation of slaves and in-migration of free Blacks—ensuring a steady supply of the former, while restricting the latter, lest they upset the system of racially based slavery. Some northern states also sought to keep out or at least restrict free Blacks, out of racism. Many states further tried to restrict entrance by “paupers”—people believed likely to become dependent on welfare and charity. All these categories applied to both domestic and international migrants, making states reluctant to cede control over these issues to the national government.
All of this helped lead to a Constitution that did not give the federal government much, if any, control over migration, at least in peacetime. States wanted to retain that control for themselves. As Law points out, the Constitution doesn’t clearly assign power over migration to any level of government. But the historical evidence suggests the general understanding in the Founding era was that international and domestic migration were largely under state control.
One can put the point even more strongly: Given the extensive and detailed enumeration of other federal powers in the Constitution—including such relatively minor ones as “fix[ing] the standard of weights and measures” and establishing “post roads”—it would be extremely surprising if the Founders gave the federal government so major a power as that of immigration restriction without making it explicit. The Naturalization Clause does give Congress the power to create a “uniform” rule of naturalization. But that is a power to grant citizen status to foreigners, not a power to restrict migration. In the Founding era, as today, many non-citizens could live and work in the US. Similarly, the Citizenship Clause of the Fourteenth Amendment – subject of a major recent Supreme Court decision which I have analyzed elsewhere – grants birthright citizenship to all children born in the United States and “subject to [its] jurisdiction,” but does not grant any power over migration. Law’s book carefully covers citizenship issues, as well as migration, but her analysis of the latter is more compelling and original.
The issue of power over relations with Native American tribes is more complicated than that over migration and slavery. As Law recounts, many of the Founders wanted the federal government to have greater authority in this area than was possible under the Articles of Confederation, to make it easier to expand US territory, defend against attacks, and also manage conflicts with Native Americans, often provoked by settlers and state governments. Significantly, however, she does not reference any power to control Native American migration, as opposed to dealing with trade, warfare, and disputes over land. Such Native Americans as wanted to migrate to the United States (or within it) could do so largely free of federal government constraints, though perhaps not state ones.
The one possible explicit reference to a general federal power over migration in the Constitution is the Migration or Importation Clause, which states that “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.” Law is equivocal about whether this clause suggests an implicit congressional power over “migration.” In and of itself, the provision doesn’t grant any federal power, but merely limits it. But there might not be any need to limit power over “migration” if there were no such power to begin with.
The answer to this conundrum is found in another part of Law’s book. She rightly emphasizes the importance of indentured servants to 18th century migration. As she points out, over 40% of 18th century migrants to the then-British colonies were indentured servants: people whose passage across the Atlantic was paid by future employers in exchange for being bound to work for them (often without pay) for a period of several years.
As I have pointed out elsewhere, indentured servants (unlike slaves) were voluntary migrants and thus required the word “migration” to cover them. But, like slaves, they were considered “articles of commerce,” and therefore—unlike completely free migrants—within the scope of Congress’s power to regulate international commerce.
All of this reinforces Thomas Jefferson and James Madison’s position (most extensively laid out in the latter’s Report of 1800) that the power to restrict migration was, under the original meaning, not a federal power at all, with the likely exception of migration from countries with which the United States is at war. It is also backed by the outcry against the Alien Friends Act of 1798 (part of the notorious Alien and Sedition Acts), which gave the president broader power to deport migrants he deemed dangerous. Law rightly notes that this episode was more significant than is sometimes depicted. Although no one was ever officially deported under the act, many migrants “voluntarily” departed for fear of it, and opponents made it a major point of contention against John Adams’ administration. By contrast, there were few objections to the simultaneously enacted Alien Enemies Act (AEA), which only allows detention or deportation of migrants from nations with which the US is at war, or their governments have perpetrated an “invasion” or “predatory incursion” on US territory. The AEA is currently the subject of litigation thanks to the Trump Administration’s and some state governments badly flawed claims that illegal migration and drug smuggling qualify as an “invasion.” But overwhelming historical evidence shows such claims go against the original meaning of the Constitution and the AEA.
Traditional accounts of this era emphasize that federal control over immigration was limited by lack of administrative capacity. Law is rightly skeptical that this was as big a factor as often claimed. She points out that the federal government developed considerable administrative capacity in other areas, such as imposing tariffs. It could potentially have done so in the immigration field as well, with sufficient political support. Constitutional and political constraints played important roles in preventing that.
Law recounts that state control over migration lasted until after the Civil War, when a combination of the end of slavery and racist opposition to Chinese migration resulted in major new restrictionist federal legislation, upheld by the Supreme Court in the Chinese Exclusion Cases of 1889. She notes—correctly—that that these decisions and policies had no clear textual basis in the Constitution, and that they were heavily influenced by the widespread bigotry of the time. I myself have argued that the ruling is a worthy candidate for inclusion in the “anti-canon” of the Supreme Court’s worst-ever decisions.
Law concludes that federalism largely failed to enhance liberty when it comes to international and internal migration. She correctly emphasizes the many restrictionist aspects of state control, often motivated by racial or ethnic bigotry. She notes, also, that neighboring states sometimes imitated each other’s restrictive policies rather than countering them.
Law is certainly right that state policy on both internal and international migration during the first century of American history was far from a paragon of virtue and inclusion. But other aspects of her account strongly suggest that leaving this policy area under state control was still likely better than federalization would have been.
Variation between states often worked to the advantage of migrants. As Law describes, ship owners and employers often arranged to land new immigrants in states with less restrictionist polices. From there, they could move on to other states—including those with tighter restrictions on landing. Moreover, as Law outlines in one of the more insightful and original parts of her account, the state of New York—which, in the nineteenth century as now, had the single biggest East Coast port—had very open policies, with few restrictions on migration. Immigrants and shipping lines took advantage of that.
Later in her account, Law describes how the shift to federal control over international migration in the late nineteenth century led to a greater overall level of restriction. Restrictions became more extensive and more comprehensive than before. (Though Law also notes that many of these laws were based on earlier constraints adopted by states). Migrants could no longer take advantage of variation between state laws, or at least not as much. Law concludes that “[f]ederalization and nationalization of immigration did not lead to more liberal laws.” Rather the contrary, in fact.
Law also may somewhat overstate the extent to which racial and ethnic discrimination guided immigration policy. Undoubtedly, there was a great deal of that. But many of the Founders also took Enlightenment liberal ideology seriously, and recognized that it implied an open immigration policy.
In his General Orders to the Continental Army, issued at the end of the Revolutionary War in 1783, George Washington stated that one of the reasons the United States was founded was to create “an Asylum for the poor and oppressed of all nations and religions.” He expressed similar views on other occasions as president, including writing to a group of newly arrived Irish immigrants that “[t]he bosom of America is open to receive not only the opulent & respectable Stranger, but the oppressed & persecuted of all Nations & Religions.” Jefferson, Madison, and others said similar things. This talk was backed by actual policy at the federal level, and in more liberal-minded state governments.
When it comes to non-white immigrants, as Law notes, the Naturalization Act of 1790, and succeeding legislation until after the Civil War, limited citizenship to whites. That was undoubtedly caused by a combination of racism and fear that an increasing population of Black immigrants would imperil racially based slavery. But this restriction did not prevent non-white migrants from coming to the US and living and working here—as many Black Haitians did beginning in the 1790s, and numerous Chinese and other Asians later.
In sum, leaving immigration policy largely to state governments likely led to substantially more open immigration than might otherwise have been the case, and the Founders’ liberal Enlightenment ideals had some real impact. At the same time, Law is right to point to the many severe deviations from those ideals, especially at the state level and with respect to Blacks.
In my book Free to Move: Foot Voting, Migration, and Political Freedom, I suggest that a decentralized immigration policy would also be superior to federal control today, though not as good as simple universal freedom of movement. Law hints at this possibility near the end of her book. Obviously, that issue cannot be resolved by looking at history alone. But the history is an important dimension of the debate. It is also relevant to any understanding of the original meaning of the Constitution with respect to migration authority. Law’s new book is essential reading for anyone interested in the constitutional and political history of American migration policy.
