Here’s a medium-length legal-thought experiment. Download or dust off a copy of the Constitution of the United States of America because we’re on a hunt. For this experiment, we’ll leave the Bill of Rights and all additional Amendments out.
The U.S. Constitution (sans Amendments) has exactly 4,543 words including all of the Founders’ signatures. Reading at an average rate of roughly 200 words per minute, one could likely read through and comprehend the gist of the document in around half an hour or so. That’s one episode of Community or a barely-worth-it work out at the gym you pay too much for.
If you want to save some time, just use CTRL+F to run a search after downloading a PDF of the document here.
Now, look for the word “immigration.” You won’t be finding it any time before (or after) the rapture. Look again if you’d like. Try various permutations. You won’t find the word “immigration” in the U.S. Constitution because it’s simply not there.
In other words, the U.S. Constitution has exactly nothing to say about immigration and therefore contains no language enumerating any powers to any branch of the federal government to regulate or legislate immigration.
There are two clauses which are potentially confusing. The Naturalization Clause and the Migration and Importation Clause. But neither of those clauses facially provide Congress any power to restrict or limit immigration. Let’s take each clause in turn.
The Naturalization Clause is simply a grant for Congress to determine the rules for obtaining U.S. citizenship. That is, the “uniform Rule” described in the clause only refers to the creation of a law outlining how immigrants and others acquire citizenship; nothing about getting into the country in the first place. The plain language of the clause is a grant of authority over determining citizenship eligibility–not any authority over immigration itself. Again, on this issue, the clause is completely silent.
Now, obviously, naturalization is closely related to immigration in many circumstances. Additionally, it should be pointed out that Congress does in fact base its power to regulate immigration on this clause. But as far as being an enumerated power, it’s just not there. And this is something the U.S. has long acknowledged.
The first significant law banning migration was the Chinese Exclusion Act of 1882. This law passed because of widespread racism against the Chinese. The Supreme Court upheld the law in 1889 by admitting that the power to restrict immigration was not an enumerated Constitutional prerogative. Rather, the nation’s high court ruled, the power to restrict immigration was “inherent” and didn’t really need to be enumerated.
So much for that one.
The Migration and Importation Clause is particularly confusing. It reads:
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.
First of all, this clause doesn’t provide Congress any additional power whatsoever. It’s quite clearly a limitation on Congress’ power. A counter-argument presents itself: because of the way the clause mentions the year 1808, a power to prohibit immigration in the future could be implied. That is a semi-valid argument but it doesn’t comport with history.
In a thorough research article on the subject, George Mason University Law Professor Ilya Somin noted:
[T]he inclusion of the term “migration” was not meant to imply a general federal power to restrict migration, but was a euphemism intended to bolster the pretense that the Constitution did not endorse slavery.
To support this interpretation, Somin notes an 1819 letter sent by John Jay, the first Chief Justice of the Supreme Court and one of many coauthors of The Federalist Papers. In that letter, Jay wrote:
It will, I presume, be admitted that slaves were the persons intended. The word slaves was avoided, probably on account of the existing toleration of slavery and of its discordance with the principles of the Revolution, and from a consciousness of its being repugnant to the following positions in the Declaration of Independence, viz.: “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them are life, liberty, and the pursuit of happiness.”
James Madison, America’s fourth president and another coauthor of The Federalist Papers also noted the original meaning of this clause in a letter sent the same year. Madison wrote:
[Some of the states] had scruples against admitting the term ‘slaves’ into the Instrument. Hence the descriptive phrase ‘migration or importation of persons;’ the term migration allowing those who were scrupulous of acknowledging expressly a property in human beings, to view imported persons as a species of emigrants…
So much for that clause.
Now, this is just an experiment, so let’s cut to the chase. What the clauses originally meant doesn’t really matter. As already explained, Congress has passed immigration laws and those laws have been deemed Constitutional. That’s because the Constitution is a living document that’s never only interpreted by what its terms originally meant or how they were originally understood by the Founders. Both of those methods, however, are schools of thought operating under the ideological banner of originalism.
Originalism isn’t actually a principled position, but instead a form of constitutional interpretation advanced by movement conservatism in order to push back against perceived “judicial activism” from the liberally-inclined Warren and Burger courts of the 1960s through mid-1980s. Indeed, originalism is a form of reactionary judicial activism itself. Antonin Scalia was the leading light of the movement and Justices Clarence Thomas and Neil Gorsuch both proudly wave the banner today.
But there’s an obvious disconnect here.
As former CATO scholar and current policy counsel with the International Refugee Assistance Project Adam Bates asked in a post on Facebook:
How do all the flag-wrapped “constitutional conservatives” handle the fact that there isn’t a single word in the constitution that authorizes the federal government to restrict immigration?
The answer is: they don’t. The right-wing movement of so-called “constitutional conservatives” are mostly the same nativistic folks who push for increased crackdowns on undocumented immigrants and more restrictions on immigration–both legal and illegal. But the Constitutional authority for passing such laws is something only liberal interpretations of the Constitution can support.
Experiment over.
[image via KENA BETANCUR/AFP/Getty Images]
Follow Colin Kalmbacher on Twitter: @colinkalmbacher
This is an opinion piece. The views expressed in this article are those of just the author.
