Immigration and the US Constitution

This is a guest post by Ilya Somin, a professor of law at George Mason University and blogger at The Volokh Conspiracy (posts by Somin only). Somin has argued for substantially freer immigration, particularly in the context of immigration to the United States, on both moral and practical grounds. A list of some of his writings relevant to open borders can be found at the Open Borders page about Somin.

The US Constitution does not in itself tell us what kind of immigration policy is right and just. But it is relevant to debates over immigration in at least three important ways. First, some opponents of increased immigration mistakenly argue that the Preamble and other parts of the Constitution commit the US government to ignoring the potential benefits of immigration to would-be migrants themselves. Second, there is a strong case that the original meaning of the Constitution restricts Congress’ power to limit migration, though it does give Congress broad power to deny citizenship to migrants. Finally, some structural aspects of the Constitution help limit the potential “political externalities” of open immigration, thereby weakening claims that the only way to prevent immigrants from having negative effects on public policy is to keep them out of the country entirely.

I. The Constitution does not Justify Ignoring the Benefits of Immigration for Immigrants.

The Preamble to the Constitution states that the document’s purpose is to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” Some opponents of immigration claim that the inclusion of the phrase “ourselves and our posterity” suggests that the Constitution was only meant to benefit present US citizens and their descendants, thereby justifying the US government in ignoring the rights and welfare of potential migrants in making decisions on immigration policy. However, the term “posterity,” as used in the Preamble, is probably metaphorical rather than literal – denoting future residents of the United States in general rather than merely just those who were citizens in 1787 and their descendants. In the 18th century, as today, the word “posterity” was often used to denote “future generations” in general rather than merely the biological descendants of a particular group of people. In 1787, and for almost a century thereafter, the US had a virtual open borders policy, and the Framers of the Constitution had no intention of changing that. They knew that millions of immigrants would be among the “posterity” referred to in the Preamble.

Even if we assume that the “posterity” referred to in the Preamble really does refer only to those who were citizens in 1787 and their descendants, it does not follow that that the Constitution justifies ignoring the effects of immigration restrictions on would-be immigrants. As the Founding Fathers well knew, there are moral limits on what governments are allowed to do in pursuit of the interests of their citizens. For example, the United States has no right to invade Mexico and enslave its people – even if doing so would enhance “the general welfare” of Americans. Similarly, there are moral constraints on the extent to which the US government is justified in forcibly consigning would-be immigrants to lives of poverty and oppression in Third World countries. Neither the Preamble nor any other part of the Constitution states that the US government is entitled to ignore moral constraints on the means it uses to achieve the goals of the Constitution.

A closely related restrictionist argument is the claim that aliens are not entitled to the various constitutional rights enumerated in the Constitution. In reality, most of the rights guaranteed by the Constitution are extended to all persons who enter areas governed by the United States, whether citizens or not. As James Madison put it at the Virginia ratifying convention for the Constitution, “[I]t 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.” In the few cases where the Constitution really does protect only citizens, the term “citizens” is explicitly used, as in the Privileges and Immunities Clause of Article IV, Section 2. Such explicit references to citizens would be unnecessary if there was an implicit understanding that all constitutional rights are limited to citizens alone.

II. Congress’ Power to Restrict Immigration.

The detailed enumeration of congressional powers in Article I of the Constitution does not include any power to restrict migration as such, even though it does include the power to make laws concerning the “naturalization” of foreigners and “regulate Commerce with foreign Nations.” The Naturalization Clause does not create a power to prevent foreigners from entering the country. It merely allows Congress to set conditions for the grant of citizenship.

The scope of the power to regulate “commerce” has long been a source of controversy. But at the time of the Founding and for many decades thereafter, the dominant interpretation was that it merely gave Congress the power to restrict trade and other commercial transactions, not to forbid movement as such. The Commerce Clause also gives Congress the power to regulate interstate as well as international commerce. Yet few if any eighteenth and nineteenth century jurists would have argued that Congress therefore had the power to forbid Americans from moving from one state to another.

In recent years, some leading legal scholars have argued that the original meaning of the Commerce Clause gives Congress the power to regulate all “social interaction” that affects multiple states or foreign nations. But this interpretation would give Congress nearly unlimited power, and is inconsistent with the dominant original understanding that congressional power was intended to be strictly limited in order to limit infringements on the power of the states. For a more detailed critique of the interaction theory, see this article by Georgetown law professor Randy Barnett.

Congress can restrict the entry of some foreigners by using its other enumerated powers. For example, the power to declare war and to spend money for the “common defence” includes a power to forcibly restrict entry by enemy spies, terrorists, and soldiers. The power to “define and punish” offenses against “the law of nations” presumably allows Congress to restrict the movement of pirates and other violators of international law. But there is no general enumerated power giving Congress the authority to ban the entry of people simply because they are foreign nationals.

Not until the Chinese Exclusion Act of 1882 did Congress adopt a significant law banning migration as such, as opposed to restricting eligibility for citizenship or excluding individuals who posed a specific threat that Congress could address under one of its other enumerated powers. And, even then, there was considerable controversy over the law’s constitutionality, despite the fact that the Act was popular due to widespread anti-Chinese prejudice.

Modern Supreme Court decisions such as Gonzales v. Raich hold that Congress has the authority to regulate virtually any “economic activity” (defined broadly enough to cover most migration) and that it has “plenary” power to restrict immigration. It is unlikely that these doctrines will be reversed any time soon. Adherents of “living constitution” theories of constitutional interpretation can, consistent with their commitments, support this overriding of the text and original meaning. But professed originalists – who include many anti-immigration conservatives – are in a more difficult bind. This is especially true in light of the fact that conservative originalists have been in the forefront of those arguing for a narrow interpretation of Congress’ powers under interstate Commerce Clause. If the term “commerce” has a narrow definition when it comes to interstate commerce, the same applies to foreign commerce, since the Constitution literally uses the same word to cover both, giving Congress the power to “regulate Commerce with foreign Nations, and among the several States.”

A possible way out of this bind for originalists is the claim that the federal government has an “inherent” power to restrict international migration, regardless of whether it is explicitly enumerated in the Constitution. That was in fact the basis on which the Supreme Court upheld the exclusion of Chinese in 1889. But if the Constitution presumes such an inherent power to restrict migration, surely there is an equally inherent power to control naturalization. Yet Article I includes an explicit grant of the power to establish a “uniform Rule of Naturalization.”

Finally, even if Congress does have the power to exclude migrants for any reason it wants, nothing in the Constitution requires it to do so. The Constitution allows federal and state governments to do many things that are ill-conceived or unjust, and large-scale restrictions on immigration could be among them.

III. The Constitution and Potential Political Externalities of Immigration.

Sophisticated critics of immigration – particularly conservative and libertarian ones – often emphasize the problem of “political externalities:” the danger that immigrants will use the power of the vote to cause harmful changes in government policy. Several parts of the Constitution help restrict such dangers.

First, as noted above, the Naturalization Clause gives Congress the power to restrict migrants’ eligibility for citizenship. Under current law, most legal immigrants are eligible for citizenship only after five years, and only if they speak a modicum of English and can pass a citizenship test that many native-born Americans would fail. This ensures that immigrants will be at least partially assimilated before getting citizenship rights, and makes it less likely they would support laws that undermine core American values. If necessary, Congress could lengthen the waiting period for citizenship, make the test harder, or both. Living for many years in a nation that denies them citizenship rights may be unfair to immigrants. But most would prefer living as a non-citizen in a relatively free and prosperous society to life as a full citizen in poor and often oppressive Third World nations.

Second, the Constitution’s requirement that each state has two senators leads to overrepresentation of states with small populations. Most such states are relatively rural states far from the East and West coasts, and they tend to have few immigrants. The resulting overrepresentation of native-born citizens diminishes the relative power of immigrant voters, and thereby helps alleviate any political externalities they might cause. The Constitution also restricts most powerful elected offices to citizens, and allows Congress to restrict non-citizen eligibility for federal welfare programs.

The political effects of the Naturalization Clause and the Senate are double-edged swords. In some cases, immigrant voters might use their influence to improve American public policy rather than make it worse. When that happens, restrictions on eligibility for citizenship and overrepresentation of native-born citizens in the Senate turn out to be harmful rather than beneficial. But those who worry about the political externalities of immigration are likely to be pessimists rather than optimists in their assessment of the influence of of immigrant voters. Such pessimists should welcome the fact that the Constitution has many mechanisms for controlling such externalities without resorting the more draconian approach of banning migrants from entering in the first place, and thereby consigning many to a lifetime of misery in the Third World.

UPDATE: At the Originalism Blog, University of San Diego Law Professor Michael Ramsey raises an objection that has also been advanced by some commenters on this site:

Professor Somin argues, among other things, that the Constitution’s original meaning does not give Congress general power to restrict immigration…

I think his argument may well be correct. But if it is, I think it quite plainly leads to a result Professor Somin does not mention, and which the folks at Open Borders do not want hear: it would leave to the states the power to restrict immigration.

I agree that the states had the power to restrict immigration under the original 1787 Constitution. But matters are far less clear after the Fourteenth Amendment, which, among other things, restricts state government discrimination against aliens. As the Supreme Court pointed out in Plyler v. Doe (admittedly in an opinion written by non-originalist Justice William Brennan), several of the framers of the Amendment specifically stated that one of its purposes was to curb such discrimination.

But if it turns out that the price of limiting congressional power to restrict immigration is increasing state power to do so, that’s a tradeoff I’m more than happy to accept. Some states might choose to severely limit immigration, but – thanks to interjurisdictional competition – others will embrace it. And life in any American state is a far better deal for immigrants than being consigned to the Third World, which is the effect of federal laws banning migration.

UPDATE #2: Michael Ramsey’s colleague and co-blogger Mike Rappaport comments on this post here. Mike agrees with me that “the Constitution does not give Congress the power to regulate immigration as such.” But he also argues that Congress does have the power to regulate some other types of international movement, such as crossing international boundaries for commercial purposes. I largely agree. But such restrictions are a far cry from being able to ban mere migration across international lines.

Mike also raises the issue of state authority to impose migration, barriers, but concludes (as I do above) that state migration laws are unlikely to impede immigration as much as federal ones do, given interstate variation and competition. He does not address my point about the ways in which the Fourteenth Amendment might restrict state governments’ power to regulate migration.

Finally, Mike suggests that if the Supreme Court had struck down the Chinese Exclusion Act in the 1880s, Congress might have been given the power to ban immigration by constitutional amendment. That is certainly possible. But the Constitution is extremely hard to amend, and it is far from clear that the supporters of the Exclusion Act had the necessary two-thirds majority in both houses of Congress, plus winning the support of three quarters of state legislatures.

Related reading

These links have been edited by the Open Borders: The Case editorial staff and were not vetted by the author.

Other related material by the author: Obama, immigration, and the rule of law [updated with additional material on precedents for Obama’s action, and a response to Timothy Sandefur] by Ilya Somin, Volokh Conspiracy (Washington Post), November 20, 2014.

Related Open Borders: The Case blog posts:

Relevant background material coverage on Open Borders: The Case:

The painting featured at the top of this post depicts the signing of the United States Constitution, and is available in the public domain.

Ilya Somin is Professor of Law at George Mason University School of Law. His research focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy. He is the author of The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press, forthcoming), and Democracy and Political Ignorance: Why Smaller Government is Smarter (Stanford University Press, 2013), and coauthor of A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (Palgrave Macmillan, 2013).

110 thoughts on “Immigration and the US Constitution”

  1. ‘The Commerce Clause also gives Congress the power to regulate interstate as well as international commerce. Yet few if any eighteenth and nineteenth century jurists would have argued that Congress therefore had the power to forbid Americans from moving from one state to another.’
    How compare regulation of foreigners coming to the US with regulation of citizens moving around in the US?

    1. The argument that he is addressing is this one:

      “Congress has the power to regulate international migration because the Commerce Clause empowers Congress to ‘regulate Commerce with foreign Nations, and among the several States, ….'”

      So if this clause empowers Congress to forbid international migration, the same clause would clearly empower it to prohibit interstate migration. Nobody believes now, nor does it seem that anyone has ever believed, that Congress is so empowered. The logic used to suggest that the Commerce Clause empowers Congress to prohibit international migration must either ignores this fact, or pretends that there are two separate clauses (or uses of plain English) at work.

        1. trade, transportation and commercial travel are all subsets of COMMERCE… including “immigration”.

          nothing changed since 1789

          but privately hiking across the desert is not a means of commerce… neither is sailing up to a marina in my yacht, or floating around in a hot air balloon…


          “it is impossible to immigrate by walking across the border”

          1. Well Thumb, You are wrong. Take a look at history through a different lens:

            On September 3, 1783, the Treaty of Paris is signed ending the War of Independence That Treaty converted the thirteen British colonies into thirteen independent self-governing States. [read “States” here as independent Countries.]

            Even before the surrender these thirteen British Colonies combined in an effort to knit themselves into a Confederation drafted and approved the “Articles of Confederation”. This first attempt at a Confederation was not completely functional.

            After the Treaty of Paris was signed a Constitutional Convention was scheduled to fix the Articles of Confederation. The Convention was attended mainly by two groups. There were Government Limiters [These were delegates from 13 separate governing bodies, there to designate what powers those 13 independent governing bodies were going to delegate to a DC Government.] hereafter called GL. They favored a limited Federation, and they were real Federalists. However, the Government Growers hereafter called GG favored a strong Central Government. The first step toward deception occurred when the advocates of a strong central government began calling themselves “Federalist”. The State Delegates debated many issues. Most of what the GG, (calling themselves Federalist), proposed were SOUNDLY REJECTED by the State Delegates, and therefore, the GL prevailed, and the thirteen States ratified a federal Constitution that we can read today.

            In the Constitution, no powers over immigration were delegated to the Executive Branch. Additionally, no powers over immigration were delegated to the Supreme Court. [Now stay with me here.] This may be new to you. The powers over immigration were not even delegated to the DC Government Legislature. In other words, in 1787 the only governing powers over immigration were held by the States, and the States were not willing to delegate any powers over immigration to the DC Government.

            In the Constitution there are just seven words found in Article 1 Section 8 clause 4 of the Constitution where the States delegated the only power over people coming to the United States to the DC Government. The power they delegated to the DC Government Legislators was the power, “To establish a uniform Rule of Naturalization,” [That is all that is said in the Constitution about people migrating to the US.]

            And let me remind you here about the Tenth Amendment to the Constitution (part of the bill of rights) it clearly says, [read this slowly and thoughtfully.] “The powers not delegated to the United States nor prohibited by it [the Constitution] to the states, are reserved to the states respectively, or to the people.”

            1. Article 1, Section 9.

              “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, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.”

              We are long past 1808.

              And then there is control over international commerce. To say the federal government cannot govern the ports it holds is nonsense, and it will get us nowhere.

              The problem is when they misapply that governance into the **States**, where it cannot apply. The mass media and government and the people who are trained by this conditioning are talking about gibberish that doesn’t exist: “illegal border crossings”, “illegally residing in the United States”, “illegal re-entry” because someone walked across the border twice, or floated in his hot air balloon again. “Entry” means “Admission”, not “crossing the border”. I can easily cross the border without gaining admission at all. I can easily bypass the toll road by walking through a field, or driving on a common highway.

              1. Well Thumb, I have read the debates. They clearly reveal that Article 1 Section 9 referees only, only to importation of Slaves. Adams knew it in 1798 when he proposed the Alien and Sedition Acts. He knew he was legislating outside of A1 S9, and so did the entire DC Congress that Passed the unconstitutional Acts.

                Additionally, enough of the “Founding Generation” had to be dead and forgotten before the first unconstitutional immigration law ,the “Chinese Exclusion Act” could be passed in 1882.

                Let me also add that Madison after he had his first “change of heart” pointed out in the Federalist Papers that (paraphrasing) the powers delegated to The DC Government will be “few and well defined.” the powers retained by the States will be “numerous and indefinite.”

                Your statement about “power over ports of entry” are not a delegated power.

                1. Either way, the passage of time has made it thus. Consider this: one must literally pass through “port of entry” to even invoke the federal power to begin with. these are basically incorporations of “DC”, a fiction to extend jurisdiction over external possessions of the federal government. They don’t just show up one day and “declare sovereignty”: it is a circumstance that was carefully built up over a long time by acquiring and developing the land, and taking over these external “territories”, just like other “needful forts and installations”. It is a military power, not an abstract idea. And it has morphed into the criminal fascist terrorist bureaucracy that we are burdened with today, transmogrified by suburban callousness and apathy.

                  1. Show me where “Ports of Entry” are a Delegated power in the 1789 Constitution. The DC Congress is delegated the power to “declarer War. The DC Government is delegated the power to repel an invasion. So you cannot extrapolate from delegated powers to similar powers un-delegated.

                    Thumb, I am a libertarian, but I do not advocate complete open borders. The States that made up the UNION are sovereign, and the people of those States have ever right to determine who and under what controls people from outside the US can enter their State.

                    I have written extensively on this subject check out LibertyViews

    2. Excellent positional statement Rodger. Congress can perhaps control the influx of foreign immigrants but it certainly does not give it the authority to control the movement of citizens from state to state. We have a constitution that guarantees certain rights and if not explicitly stated in the constitution it is implicitly implied.

      1. The Constitution used seven words about people coming into any of the States. That was “to establish a uniform rule of naturalization,” No control over immigration was delegated to the DC Government.

        1. very true. but the federal government has control over immigration through the “entry ports”, which are international.

          corollary: the federal government has greatly exceeded its mandate by wrongful application of immigration law in the several States.

          1. Well Thumb, I invite you to read the Tenth Amendment to the Constitution. [read this slowly and thoughtfully.] “The powers not delegated to the United States nor prohibited by it [the Constitution] to the states, are reserved to the states respectively, or to the people.”

            Adams violated this amendment with the “Alien and Sedition Acts” And Jefferson over stepped his powers by closing the ports of entry to carry-out an embargo.

            The 13 independent governing bodies, called States, that could ratify or not ratify the proposed Constitution were not willing to give-up their power over immigration. So that power was never delegated.

            In fact it was almost 100 years before the US Congress, unconstitutionally, passed the first significant immigration law. The Chinese Exclusion Act of 1882.

            1. you will get nowhere arguing that the INA is “unconstitutional”. try it the other way: do the States have power over international ports in the Union? The Alien and Sedition Acts violated other constitutional norms, not the premise of federal port controls.

              1. Show me in the Constitution ratified in 1789 where the DC Government has was delegated the power to which you reefer.

                I do not deny that they have it, but they have it unlawfully. In fact experts say that 80% of what our DC Government does is not a delegated but a usurped power.

                1. i already did: Commerce, Importation and Migration of Such Persons, Needful Forts and Installations, Federal Territorial Jurisdiction, The Wizard of “DC” legal fiction, and by private maritime contract. Go through a federal port, become a federal subject. But this is really the least of our problems.

                  1. I already did: Commerce, [trade not immigration] Importation and Migration of Such Persons, refers only to dealing with slaves Needful Forts and Installations. A delegated power A1 S8 Clause 1, 11, 12, and 13. Federal Territorial Jurisdiction, No territorial jurisdiction after a State is recognized. The Wizard of “DC” legal fiction, and by private maritime contract. Show me the Delegated power in the Constitution.

                    Tell me Thumb, what is the greatest of our problems?

  2. If the U.S. federal government was not granted the right to restrict migration but only to define the conditions of naturalization of citizens, does that imply the right to control migration was left to the States individually? That is, the states individually could choose who entered their boundaries though the federal government could determine whether they became citizens once they entered.

  3. What about the first paragraph in Article 1, Section 9? The constitution says, “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…”

    I understand that “importation of such persons” meant the slave trade, but “migration…of such persons” has to mean voluntary immigration. By explicitly disallowing prohibitions on migration, but only until 1808, this paragraph seems to imply that after 1808, the federal government has wide-ranging power to restrict immigration.

    1. Strictly speaking, this argument seems like a nonsequitur. If:

      1. The Constitution is defining the powers of Congress.


      2. The Constitution explicitly asserts that it is not granting the power to prohibit the migration or importation of certain persons before 1808.

      It does not follow, logically, that:

      3. The Constitution grants the power to prohibit the migration or important of certain persons after 1808.

      It does suggest it. If this was all you knew about the Constitution, you might think a grant of this power had been given elsewhere in the Constitution, hence the necessity to carve out an exception.

      Consider the Bill of Rights. It prohibits a number of things, e.g., Congress establishing a religion. Does it follow that WITHOUT the Bill of Rights, Congress WOULD have the power to establish a religion? It does not, and I think that would have been well understood at the time. But I’m no constitutional law scholar.

    2. Sorry Expected, Article 1 section 9 refereed only to importation of slaves. If it had been understood to mean general migration President Adams would have exercised the power instead of sponsoring and signing the unconstitutional Alien and sedition acts passed during Adam’s administration.

      1. strict linguistic interpretation always applies in defect of another option. it may have been geared towards the conditions of slavery at the time, but it is still law of the land. Congress has the power to regulate the importing and immigration of people, besides things and stuffs.

        but it only has this power in relation to “ports of entry”. the actual deportation statute recognizes this clearly:

        8 U.S. Code § 1227. Deportble aliens

        (a) Classes of deportable aliens

        Any alien (including an alien crewman) in and **admitted** to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:

        two conditions precedent:




        Only by gaining “admission”, legal or illegal, is anyone within a subject class of “aliens” susceptible to ‘removal’. it’s like an eviction case: there has to be compliance with the standards of a landlord tenant statute. I cannot be “evicted” except in function of attournment to a “landlord”.

        98% of all federal prosecution is itself illegal.

        1. Well Thumb, I did not read the full law you referenced, but if you look in the footnotes the earliest law justifying it was 1952.

          During the composition stage of the Constitution the State Delegates rejected most of the proposed powers. Get your mind around this fact: James Madison the Delegate from Virginia came to the Convention with a completely pre-written Constitution. Among other rejected provisions one most pernicious was that States were required to submit State Laws to The US Congress for approval. Needless to say the “Virginia Plan’ was rejected in its entirety.

          The States being very jealous of their powers and after rejecting all the proposals that the fake “Federalist” had included in the Constitution, including the Hereditary Monarch and a dissolving of the States proposed by Alexander Hamilton, the strongest advocate of a power Central Government. The State Delegates added a protection that guarantee that the DC Government would not usurp State powers. That protection can be found in Article VI of the Constitution. To paraphrase what it says, is that laws passed by Congress and signed by the President are null and void and have no power if they were not passed in “pursuance to the Constitution”. This means that laws passed by the DC government legislators and signed by the President HAVE NO POWER if the law had not been a power delegated by the States to the DC Government during ratification. In plain language Congress cannot add powers to the DC Government through legislation. Read it for yourself in Article VI of the Constitution.

          The bottom line Thumb the only lawful power over immigration is still held by the STATES. Any power over immigration exercised by the DC Government is unconstitutional.

    3. “but “migration…of such persons” has to mean voluntary immigration. ”

      I can see why you would think this, but it is incorrect. By saying migration, the Founders were trying to make the slave trade more palatable. They weren’t talking about immigration.

  4. Ilya,

    There is abundant evidence from the Framing era that the verb “to naturalize” meant to admit aliens to certain rights, not merely to admit them to a status. The privileges of citizenship that Congress had the power to extend included the power to admit aliens to the right to enter, travel, reside, and own land. Article I, section 9, indicates this, the debates over the first naturalization act indicate this, as does one of the provisions of that act, and Gouverneur Morris mentioned the possible connection between that provision and the naturalization power. I have a sketch of some of this evidence if you’re interested.

  5. Here’s one bit of evidence that’s easy to link to. Notice how the debates were over admitting aliens to land ownership, to political rights, etc–to the “rights of citizenship.”. For a variety of reasons–some political, some constitutional–Congress ended up scrapping any notion of distinguishing different rights, and just saying this is how you become a citizen, such that other law, whether state or federal would define what rights belonged to the status. (at page 1147-ff).

    Here’s another bit of evidence: Washington’s first message to Congress in 1790–urging them to adopt a naturalization law: “Various considerations also render it expedient that the terms on which foreigners may be admitted to the rights of citizens, should be speedily ascertained by a uniform rule of naturalization.”

    My whole paper is so fragmentary now that I’m reluctant to post it online. But if you’d like a copy, please email me at: d u p h a m @ u d a no spaces)

    1. One other note: see the eventual Naturalization Act, which indicated the relationship between the right to admit to residence and naturalization–the Act excluded from eligibility anyone who’d been banished from one of the states. The assumption was, then, that citizenship would give an individual a right to travel, even back to the state that had banished him.

    2. I disagree to an inclusive interpretation of naturalize. The references to admittance are framed in admittance to rights, not physical admittance. See Webster’s dictionary 1828.

      Constitutional construction would suggest if the writers intended to include immigration, they would have, as with other sec 8 clauses (e.g. post offices & post roads.)

      Consistent with original interpretation of the 9th & 10th amendments, I believe it is clear that immigration was not a power granted to congress. I find no evidence anyone interpreted the federal government to be able granted this power either.

      Hamilton in 1801 only addressed giving immigrants rights in his anti-immigration writing.

  6. Maybe this is oversimplifying, but I think there’s only three possibilities for a power: (A) government is granted the power by the Constitution; (B) government is forbidden the power by the Constitution; (C) the Constitution does not mention the power. (Requirements, like the Census, would be a subset of (A).)

    However, what we really want to know in practice is whether (1) government can do a thing, or (2) government cannot do that thing. Of course, A=1 and B=2, but we must decide whether C=1 or C=2. I think that’s a controversy that goes back to the writing of the Constitution itself, and not one that is easily settled.

    If C=1, my earlier comment is logical; if C=2, it’s not. In truth, I generally prefer C=2, but the Supreme Court seems to usually think that C=1.

    Of course, the Tenth Amendment seems to say that C=2 for the federal government, but C=1 for “the States respectively, or…the people.” Perhaps volokhfan is right, and the constitutional power to restrict immigration lies with the states, though subject to citizens’ apparent right to free travel.

  7. “But at the time of the Founding and for many decades thereafter, the dominant interpretation was that it merely gave Congress the power to restrict trade and other commercial transactions, not to forbid movement as such.”

    This is actually incorrect. The meaning of regulate does not mean control or restrict; it means to make and keep regular, that is working in a high order, like a well-regulated clock. It’s purpose was to prevent the restriction of trade between the states.

    1. “But at the time of the Founding and for many decades thereafter, the dominant interpretation was that it merely gave Congress the power to restrict trade and other commercial transactions, not to forbid movement as such.”

      This is actually incorrect. The meaning of regulate does not mean control or restrict; it means to make and keep regular, that is working in a high order, like a well-regulated clock. It’s purpose was to prevent the restriction of trade between the states.

      Um, it most certainly is correct. You don’t get to just assign to words whatever meaning is expedient to you.
      The word “regulate” most certainly does mean “control”.
      regulate |ˈreɡyəˌlāt|
      verb [with object]
      control or maintain the rate or speed of (a machine or process) so that it operates properly….
      • control or supervise (something, especially a company or business activity) by means of rules and regulations….
      From there, the rest of your argument completely falls apart.

  8. Actually the 9th Amendment could and should protect immigrants from rash or harsh immigration policies. Migration was viewed to be a natural right of man.

    1. Not when it inflicts undo harm to the Budgets That Obama Spent upwards of 900 millions dollars in benefits. That they did not earn or deserve or are entitled to Also Refugees so called have to be carefully vetted before being allowed into this country. all refugees no matter what country there from.

  9. Thank you for this article.

    In having this conversation I’ve heard conservatives cite Article IV Section 4 as reason why immigration laws are constitutional.

    “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

    Can you share some thoughts on this?

    1. Invasion was meant absolutely at the time as an armed military invasion or insurrection, not a plague of locusts or too many people crossing a line looking for freedom and prosperity. It is the same tactic used by all Consititution breakers – if you can’t change the words, change the meaning. Aside from this, the State governments would actually only require protection if the immigrants were planning to overthrow them. So there is no threat to the Republican Form of Government. No immigrant has ever threatened it, not even Arnold Schwartzeneggar.

    2. I can.

      Invaders come with tanks and rifles, not lawn mowers and rakes. Invaders want to kill their enemy, they do not come to make our beds.

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  11. The author missed a reference to immigration in the constitution that verifies the original meaning of ‘naturalization laws’ to include what we now call immigration. You cannot define a naturalization law without defining a class of persons to be naturalized. Use whatever term you like, but that translates into immigrants. It is like saying that you have the power to make criminal law but cannot make a law addressing murder because it was not specifically mentioned; however, MIGRATION is specifically mentioned in the constitution. Article I, Section 9 specifically forbids the federal government from overriding the states’ admission rules until 1808. It is nonsensical to interpret or assume that it did not gain that power after 1808. Here is the text: “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, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”

    1. You completly misunderstand this Clause. It is NOT about free immigration. It is ABSOLUTELY about slavery and nothing more than slavery. I believe the Constitutional debate over this occured on August 22 or 23, feel free to look it up. The issue at hand was that the Commerce Clause would CLEARLY allow the Congress to stop the importantion of slaves with a simple vote because it was *commerce*. In fact, there was only one statement about free immigration that day, and that was that slavery, aside from being completely immoral and damaging to all involved, demoralized free white men from immigrating because it reduced available jobs.

      It was a nice try, I looked at it too for the same reasons, but I was also wrong and was happy that I was.

    2. There isn’t a delegated power related to “naturalization laws”, the specific power is to establish an (singular) uniform rule on naturalization. The wording of the delegated powers, that of “establish an uniform rule” stands in stark contrast to the power to make uniform laws related to bankruptcy within the same clause … to that end, this post should correct it’s assertion that Congress was delegated a power to make laws on naturalization, because it simply wasn’t.

      The language of the Constitution was carefully selected and there is meant to be a clear distinction on the delegated powers.

  12. Where his argument falls apart is at the beginning when he states, “denoting future residents of the United States in general rather than merely just those who were citizens in 1787 and their descendants. ” US citizens did not exist in 1787. Those did not exist until after the 14th amendment. Why do people ignore reconstruction when trying to explain something pertaining to the constitution?

  13. Its the Constitution of the United States not Africa or Italy etc. Its written for those in the United States and is not about Migration into the United States but maybe between States. How do you protect against invasion or hostile people from other countries. You just let them in and then deal with them? No you try to stop them from entering. How do they work if they are not citizens? Therefore, if they cant work than commerce law can be used to help determine who can come in and who cant. If you cant work legally in the U.S you cant come in. Bottom line is the times dictates interpretation when it comes to immigration. You cant let people in who do not have permission and those who are Illegally in should be removed and apply to come back. The U.S citizen has the right to bear arms but you liberals wont allow them to have ak47 automatic military rifles will you? Why, the Constitution doesnt specify that citizens cannot own whatever weapon they want does it? The military back in the days used the same weapons as citizens. Bottom line is if you cant work legally in the U.S you shouldnt be allowed in. As for the Weapons the 2nd Amendment is under attack today. The 4th and 5th have already been shredded for the most part and the 1st was hijacked by Corporate America and the Elite. Unless people wake up to this fact, the country will go to shit. The U.S is supposed to be different than Britain not the same. If something is not clear than its up to congress which is what they did with immigration. They passed laws which is the only ones who can, not Obama and his many illegal Executive Orders which are only supposed to be meant for is the Executive Branch of Government not make illegal laws. Hijacking a Nation. Wake Up you Fools who dont see it

    1. You have a fundamental misunderstanding of the Constitution. And furthermore, insofar as it does only apply to U.S. citizens, it applies in such a manner as to RESTRICT them from restricting immigration.

  14. Try as you may, but the 13th, 14th, and 15th ammendment was strictly for Slaves and their Decendents. Their was NO such thing as Illegal immigrants which you NEVER say. No one argues about Immigration but illegal immigration.. Even if you want to believe everything you so deceively wrote about the laws of immigration, aliens, and naturalization these terms represent people or migrants coming to the U.S. LEGALLY on U.S. terms with the, being invited here for the purpose of becoming a legal U.S. citizen. An “Illegal alien or migrat/immigrant”was not invited here and did not come here under U.S. terms so how could they fall under the “Jurisdiction” of the U.S. when they are full citizens of a foreign country?

  15. Okay so the constitution doesn’t formally give Congress the power to restrict immigration. That’s all well and good and you make a convincing argument for that statement. But, the constitution is very limited. It doesn’t give the president the power of the Executive Order either, hell, it doesn’t even formally give the Supreme Court the power of Judicial Review. Also you cherry pick the counterarguments to address. Just sayin’.

    1. You are arguing a false equivalence. First, while you might make the claim that the Constitution does not grant these power, that is a matter of interpretation, and there are viable interpretations, in fact, most, that make this claim.
      This is unlike the issue of immigration, where the Constitution makes no reference to it AT ALL, and no clause that can even be reasonably interpreted as such.

  16. In all cases above, that would mean the federal government cannot allocate any federal dollars to immigration and states shall not allocate any of its federal dollars to immigration.

  17. Those who cross the Border Illegally have violated the law and should be returned to there home country or place of origin forthwith This is clear in Immigration Law . Those here Illegally and have committed any crime including Crossing the Border Illegally
    Shall also be sent back to their country or place of origin forthwith. Sanctuary cities that Refuse to comply with federal Orders to allow the removal of said persons Shall have Aiding and Abeiting charges as well as obstruction warrants issued for Police Chiefs Mayors or any other persons refusing to comply with these orders. Failure to do so will also result in any and all federal monies Grants will be with held to said municipality until such Sanctuary city complies with the orders. No new Grants will be issued as well, any Police officer or agent of the Force involved in These Sanctuary Cities will also be arrested as well with warrants. These men and women took an oath to uphold the law and to protect the public failure to do this is a crime all by itself. Derilliction of duty Conduct unbecoming a Public Servant to name a few

  18. I may be Hispanic, above it all I am an American. We need to control our borders or we will be like Europe. People getting killed like it was a natural thing. Illegal immigration brought about more welfare, medical, and crime. I don’t know about you, but I’m tired of paying excessive taxes. I’m tired of the California government protecting criminal illegal aliens and using my tax dollars. They forget they work for the American people. Not the other way around. Why be an American Citizen if illegal aliens, visa holders and others are entitled to more entitlements. If illegal aliens are working, their using false federal documents, which is a felony. This was presented to the San Bernardino FBI. They chose to do nothing. Homeland security my ass. This is what I told the female FBI Agent. She said nothing. Employers are hiring and paying under the table. Also a crime. I’m only stating what is fact. Its all around me. Government officials and Law Enforcement not upholding their oath to the US constitution or laws of the state should be removed from office. Any stupid laws created by governments causing death, injuries, and loss of property to innocent people should be held accountable as well as the city. All city law enforcements are unconstitutional anyway. Only the Sheriff Department is constitutional, per the US Constitution. And Affirmative Action is just another word for reverse discrimination. All this and more has transpired due to failed government action to just do their job and follow the law. Now that they try to follow the law, people think that it’s wrong because nothing was done before. I don’t understand how people here illegally feel they are entitled to the same entitlements as an American Citizen. American Citizens have died for just being an American. How demeaning these people make it.

  19. I believe the big issue is how do we deal with “Illegal Immigration”. We already have a, very slow, way of dealing with “Legal Immigration”. It is wrong to separate families as way of discouraging Illegal Immigration, since the USA does not resort to Nazi tactics to solves their problems, at least before the age of the Trump Republican Party. I’m not an economist, but common sense tells me that if we open our borders to “illegal immigration”, we will not only be flooded with huge numbers of families seeking a better life, but also another way of getting terrorists into this country. Maybe we should work on creating “Sanctuary Cities” within the borders of those countries for the protection and well being of their own people, while they go through the process of becoming “Legal” for not only the USA but other countries around the world. I’m sure that if Canada were offering free college and health care to its’ citizens, everyone in the U.S.A. would be illegally crossing their border. Wait, I think they already offer that …

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