The Founding Fathers and Immigration

Immigration is crossing a country’s borders with the intent to remain in that country. Naturalization is the process by which immigrants become citizens and gain access to political institutions. A naturalized person becomes a citizen and has a right to

• Hold office
• Vote in elections

A person can immigrate to a country without ever becoming naturalized, i.e., a citizen. The Founding Fathers knew this simple truth. The Founders wanted open borders, and the evidence is in the founding documents of this nation.

Declaration of Independence: One of the reasons the colonials revolted against the King and the English government was precisely over the King's regulation of immigration:

“He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.”

We see three reasons for revolt listed in this paragraph: (1) restriction on naturalization, (2) restriction on immigration and (3) not enough open land. Reason number (2) is the kicker: the Founding Fathers revolted against the King in part because the King wouldn’t allow open borders.

The Constitution says nothing about allowing the federal government to restrict immigration. This is as close as you get.

Article I, Section 8, Clause 4 The Congress shall have Power… To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States…

The Constitution gives the federal government power to establish whatever naturalization laws it wants, but it says nothing about immigration law. 18th century Americans considered slaves and indentured servants to be “articles of commerce,” even though the indentured servants migration was voluntary. During the Founding era, the Foreign Commerce Clause was considered to give Congress power to regulate the international shipment of articles of commerce (including slaves and indentured servants), but not to forbid mere migration, as such.

Similarly, the interstate Commerce Clause was not understood to give Congress the power to forbid the migration of Americans from one state to another. The Constitution literally uses the same phrase to cover both, giving Congress the power to “regulate Commerce with foreign Nations, and among the several States.” At the time of the founding, the individual states were supposed to have power to regulate themselves that was almost the equal of individual foreign nations. States were very much like "little nations."

Article I, 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.

The word "migration" is mentioned in Section 9, but it isn't what you think. Again, the Founders explain. As John Jay – the first Chief Justice of the Supreme Court, and coauthor of the Federalist Papers – pointed out in an 1819 letter discussing the Clause:

“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, author of the Constitution, said the phrasing of the clause was due to “scruples against admitting the term ‘slaves’ into the Instrument.” In Federalist 42, Madison decried

“[a]ttempts [that] have been made to pervert this clause into an objection against the Constitution, by representing it…as calculated to prevent voluntary and beneficial emigrations from Europe to America.”

Congress could and did outlaw the importation of slaves by 1808, and did enforce that ban on the importation of these “goods”. Thus, it was physically possible to place a ban on immigration, if that were within Congressional authority. However, for the first century of the country’s existence, Congress passed absolutely no law restricting immigration.

Amendment 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Because of the 10th Amendment, any power not listed in the Constitution does not belong to the federal government. The power to restrict immigration is not listed in the Constitution. Therefore, the federal government has no Constitutional authority to restrict immigration.

Some say the Alien and Sedition Acts of 1798 restricted immigration, since it gave the federal government the power to deport foreigners and added restrictions to the naturalization of immigrants.  Also, it allowed fines and imprisonment against those who "write, print, utter, or publish . . . any false, scandalous and malicious writing" against the government.

Now, under the terms of this law over twenty Republican newspaper editors were arrested, some were imprisoned.  No one was deported. All but the Alien Enemies Act was repealed within four years.  The Alien Enemies Act of 1798 is still in force in modified form and authorizes the President to detain, relocate, or deport enemy aliens in time of war.

The problem, of course, is that none of those acts ever actually put any restriction on immigration. They allowed for deportation, but said not a word about immigration. Worse, both Thomas Jefferson (the vice-president at the time) and James Madison (author of the Constitution) publicly condemned the Acts as "unconstitutional."

James Madison argued that the Alien Friends Act (which gave the president the power to deport aliens that he “shall judge dangerous to the peace and safety of the United States,” as well as any suspected of “treasonable or secret machinations against the government.”)[1] “exercises a power no where delegated to the federal government.”[2] Thomas Jefferson adopted much the same position in his October 1798 draft of the Kentucky Resolution, which stated that “ALIEN-friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the US. nor prohibited to the individual states distinct from their power over citizens.”

These men helped both Kentucky and Virginia pass resolutions which essentially nullified the federal laws. In summary, the Alien and Sedition Acts:

• say nothing about immigration,
• were never used to actually deport anyone,
• expired at the end of two years,
• caused two Founding Fathers to declare them unconstitutional,
• caused two states to pass resolutions which nullified the Acts, making Kentucky and Virginia "sanctuary states" from unconstitutional federal law.

For the next sixty years, the Congress passed a few laws regulating how ships carrying immigrants had to be configured, but they passed no laws restricting immigration itself. In fact, quite the contrary. President Lincoln, in his Annual Message to Congress on December 8, 1863:

“I again submit to your consideration the expediency of establishing a system for the encouragement of immigration….”

A week after Lincoln’s message a bill to encourage and protect foreign immigrants was presented in the Senate and passed, establishing the Federal Bureau to Encourage Immigration. Lincoln’s Republican Party in its 1864 convention wrote into their platform a principle stating: “That foreign immigration, which in the past has added so much to the wealth, development of resources, and increase of nations, should be fostered and encouraged by a liberal and just policy.”

So, if the Founders intended to establish an open borders country, what changed? The answer is simple: Darwin. In 1859, only a year before the Civil War, Darwin published On the Origin of Species by Means of Natural Selection, or the Preservation of Favoured Races in the Struggle for Life (published 24 November 1859). Twelve years later, at the same time a Republican Congress was passing the first Civil Rights legislation and giving citizenship rights to black Americans, Darwin published The Descent of Man, and Selection in Relation to Sex (1871).

By 1883, Francis Galton, Darwin’s cousin, creates the term “eugenics”, which means “good genes”, and “dysgenic” or “bad genes.” Galton will go on to fund a Chair of Eugenics at University of London, 1904. America and England will become leaders in the implementation of eugenics throughout the world, teaching Europe, especially Germany, the glories of eugenic thinking. By the 1870s, educated Europeans and Americans spoke of the “German race” the “French race”, the “Italian race”, the “English race”. The American elite wanted a pure “American race”.

Riding the wave of scientific "eugenic" thought, America passed the 1875 Page Act, the first federal law restricting immigration. Like the Chinese Exclusion Act of 1882, it and most subsequent federal immigration law was meant to prevent the diseased and the subhuman from entering the US. The first targets were the yellow Chinese, followed soon by most Asians and, then those of Mediterranean stock, whose skin was too dusky and whose religion was too Catholic to be trusted.

The educated elites were at war with the general culture. Most of America viewed itself as giving warm welcome to all immigrants. Thus, we see to this day, embossed on the pedestal of the Statue of Liberty, The New Colossus (1903):

Not like the brazen giant of Greek fame,

With conquering limbs astride from land to land;

Here at our sea-washed, sunset gates shall stand

A mighty woman with a torch, whose flame

Is the imprisoned lightning, and her name

MOTHER OF EXILES. From her beacon-hand

Glows world-wide welcome; her mild eyes command

The air-bridged harbor that twin cities frame.

"Keep, ancient lands, your storied pomp!" cries she

With silent lips. "Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!"

But the elites would have none of it. They wanted a pure American race, unpolluted by the mongrel hordes of American citizens who welcomed those dirty, subhuman immigrants. Prior to 1906, an immigrant could be naturalized in any U.S. "court of record", but the federal government usurps that role by 1907. In that same year, Indiana passes the first law in the world empowering the government to involuntarily sterilize its own citizens. Cold Spring Harbor creates the first eugenics laboratory, and supplies advisors to Congress on what immigration laws should be passed to keep out the dysgenic riff-raff.

Money from the millionaire elite rolled in. Margaret Sanger, wife of one of those millionaires, began referring to blacks, Catholics and Jews as "human weeds" who needed to be contracepted and sterilized in order to maintain America's racial purity. Adolf Hitler studied America law and policy closely and liked what he saw. In his autobiography, Mein Kampf (1925), he explicitly praised American eugenics law, thereby demonstrating how deeply American elites had formed his own thinking.

"There is today one state in which at least weak beginnings toward a better conception [of immigration] are noticeable. Of course, it is not our model German Republic, but [the US], in which an effort is made to consult reason at least partially. By refusing immigrants on principle to elements in poor health, by simply excluding certain races from naturalisation, it professes in slow beginnings a view that is peculiar to the People's State."

Thirty American states followed Indiana's example and began their own involuntary sterilization programs, targeting specific subpopulations: criminals, imbeciles, Mexicans, Indians. When these laws were challenged, the Supreme Court of the United States (SCOTUS)  upheld the state laws: 

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. (Buck vs. Bell, 1927)

To this day, the SCOTUS ruling in Buck vs. Bell has never been overturned. Hitler will explicitly model his own laws and policies on America's example, using American lawyers and advisors to help him craft Nazi Germany's national policy.

In the years since Darwin captured the imagination of the elites, nearly every American president from Theodore Roosevelt to Donald Trump, and virtually all the moneyed interests who put those presidents in office, have championed the cause of eugenics. Thus, America no longer follows the Founding Fathers' vision of an open borders country. Instead, we implement the eugenics vision we taught the Nazis. Keep the dysgenic out! Make America Pure Again!


PS
As the Mises Institute points out, Constitutional scholars like Ilya Sommins and Judge Andrew Napolitano agree that the Constitution doesn't actually authorize the federal government to create immigration restrictions.

 ""[T]he Constitution itself — from which all federal powers derive — does not delegate to the federal government power over immigration, only over naturalization.""