A while ago I was reading through some of the Federalist Papers and something caught my attention. What I found requires me to reverse my position on a bill I supported (HB469 – Utah’s Legal Entry Program) and affirm my continued opposition to another (HB116 – Utah’s Illegal Immigrant Amnesty or “Guest Worker” Program).
Attempts have been made to pervert this clause into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government.
Most, self included, always just associated the clause to refer strictly to slavery. However, that is simply not the case, the clause refers to entry of aliens and slaves with the power being delayed until 1808. The dichotomy within the clause rests on two words: “migration” refers to free peoples (immigrants) while “importation” referred strictly to slaves. Publius was reacting to some who had charged that the Constitution would require a maximum $10/person tax (a requirement in the clause that was not delayed until 1808) on either type of entry and construed that as a means devised to “prevent voluntary and beneficial emigrations from Europe to America”. Publius flatly rejected the notion. This means that as of 1808, the Federal Government retains complete power on the migration of persons (immigration). There is simply no way for states to have such as it is an enumerated Constitutional power and not applicable to the Tenth Amendment.
Looking at some of the debates from the Constitution’s Ratifying Conventions and early writings regarding the aforementioned clause provides even more evidence of the above.
The gentleman says that it is unfortunate in another point of view: it means to prohibit the introduction of white people from Europe, as this tax may deter them from coming amongst us. A little impartiality and attention will discover the care that the Convention took in selecting their language. The words are, “the migration or importation of such persons, &c., shall not be prohibited by Congress prior to the year 1808, but a tax or duty may be imposed on such importation.” It is observable here that the term migration is dropped, when a tax or duty is mentioned, so that Congress have power to impose the tax only on those imported.
From an Antifederalist in 1787 (“A Countryman” aka Roger Sherman) opposed to slavery who misconstrues the application of the tax but understood the clause gave the government authority over immigration in general:
Now we think it very hard, if that is their meaning, that they should make every man, that comes from the old countries here, pay ten dollars to the new government. A great many of us, have our relations in the North of Ireland, and other places, that were very good friends to us all the war, and gave a great deal of trouble to the British, and I believe, partly upon our accounts, who might wish to come and settle here, among us; and I am sure they would be of great service to us, but do not you think it would be a hard matter for them to pay for their passages, besides their other expences, ten hard dollars for themselves, and each person in their families, when they get to this country.
The committee will observe the distinction between the two words migration and importation. The first part of the clause will extend to persons who come into this country as free people, or are brought as slaves. But the last part extends to slaves only. The word migration refers to free persons; but the word importation refers to slaves, because free people cannot be said to be imported. The tax, therefore, is only to be laid on slaves who are imported, and not on free persons who migrate.
This clause of the constitution, respecting the importation of slaves, is manifestly an exception from the power of regulating commerce. Migration seems appropriately to apply to voluntary arrivals, as importation does to involuntary arrivals…
Where greater liberality is observed, yet it is always understood that the government may order away any alien whose stay is deemed incompatible with the safety of the country. Nothing is more common than to order away, on the eve of a war, all aliens or subjects of the nation with whom the war is to take place…
…at present I am inclined to think it must be admitted, that congress, prior to the year 1808, cannot prohibit the migration of free persons to a particular state, existing at the time of the constitution, which such state shall, by law, agree to receive. The states then existing, therefore, till 1808, may (we will say) admit the migration of persons to their own states, without any prohibitory act of congress.
Kentucky 1798 – they were debating “An Act concerning Aliens” passed by the Federal Government and stating that an alien act should be null and void as the Federal Government had no authority over such until 1808 (see points 4 and 5).
Other citations include an 1819 letter from Madison regarding the clause and why the word slaves wasn’t used (note the term “a property in human beings” does not refer to slaves or possession – “property” in this instance refers to an intrinsic value, that is, the value of human life) as well as Charles Pinckney and John Jay.
I was simply wrong regarding HB469. The States have absolutely no authority to establish an immigration program even if it limits the immigrant to the state. The Federal Government retains that authority.
Then we can also move on to the early debates and writings regarding the naturalization clause in Article 1 Section 8 Clause 4.
Again, in Federalist 42, Madison indicates that regulated entry is inherent in the naturalization process by noting the problems that will arise if States are allowed to admit who they desire. Bear in mind that “free inhabitants” refers to immigrants.
It seems to be a construction scarcely avoidable, however, that those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State: so that it may be in the power of a particular State, or rather every State is laid under a necessity, not only to confer the rights of citizenship in other States upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term “inhabitants” to be admitted which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each State, of naturalizing aliens in every other State. In one State, residence for a short term confirms all the rights of citizenship: in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity; and thus the law of one State be preposterously rendered paramount to the law of another, within the jurisdiction of the other. We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several States, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. What would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to residence and citizenship, within the State proscribing them?
Basically, Madison argues that, under the current Articles of Confederation, with a patchwork of entry rules and rights in each individual state, an alien going to a different state for a time could gain rights not accessible in their original entry state. Then they could return to their original entry state and retain those right effectively having one state supersede the jurisdiction of another state. He also states similar problems for criminal/disruptive aliens being able to flee to another state and gain rights that would supersede their original state. As such, a uniform means of addressing aliens was required and is, thus, inherent to the naturalization clause.
Similar arguments can be found in post-ratification writings:
St. George Tucker in 1803 in Blackstone’s Commentaries – beginning at “Every alien coming into the United States, in time of peace…”, he indicates that through legal entry aliens gain an inherent right to eventual citizenship. Note, the commentary was written prior to 1808 and may have been altered thereafter.
Joseph Story in 1833 hit upon legal entry being inherent in the naturalization clause (“exclusive power by implication”) and why there ought not be a patchwork of varying entry/residence rules (even citing Madison’s above writing):
As the free inhabitants of each state were entitled to all the privileges and immunities of citizens in all the other states, it followed, that a single state possessed the power of forcing into every other state, with the enjoyment of every immunity and privilege, any alien, whom it might choose to incorporate into its own society, however repugnant such admission might be to their polity, conveniencies, and even prejudices….An alien, therefore, incapacitated for the possession of certain rights by the laws of the latter, might, by a previous residence and naturalization in the former, elude at pleasure all their salutary regulations for self-protection. Thus the laws of a single state were preposterously rendered paramount to the laws of all the others, even within their own jurisdiction…The Federalist, indeed, introduced this very case, as entirely clear, to illustrate the doctrine of an exclusive power by implication, arising from the repugnancy of a similar power in the states.
The final statement also implies Article 1 Section 8 Clause 18 application. That is, the Federal Government has authority to make laws “necessary and proper” for executing the power.
It is clear that HB116 and HB469 fail constitutional muster. Both bills should be repealed as soon as possible.