Excerpted From: Geoffrey Heeren, Immigration Law and Slavery: Rethinking the Migration or Importation Clause, 2023 Wisconsin Law Review 1125 (2023) (411 Footnotes) (Full Document)


GeoffreyHeeren.jpegThe United States is a country of immigrants, but not all of them came by choice. Slavery and immigration were deeply connected in the colonies and early republic. However, the story of federal immigration law, as scholars usually tell it, does not begin until after emancipation. According to this traditional account, the text of the Constitution says nothing about immigration power. In the early days of the republic, states regulated immigration as a function of their “police power,” while the federal government played a limited role before the Civil War. According to this account, Southern states supposedly blocked federal regulation before the war in order to preserve their ability to limit immigration by free Black people. It took a sectional war, the escalating transformation of the Northern economy to industrial capitalism, two economic downturns, and a buildup of anti-Asian sentiment to spur the federal government to act. The Supreme Court built the constitutional foundation of modern immigration law on the blocks of Chinese exclusion. It upheld the government's racist new immigration law, creating a novel and textually unsupported doctrine of plenary federal power despite the preceding century of state immigration regulation. To this day, the Court relies on plenary power to support a doctrine of exceptional deference to the federal government in the immigration arena.

However, this body of scholarship, which is built on the notion that the federal immigration power is unenumerated, overlooks an obvious textual source. The Migration or Importation Clause explicitly references a federal immigration power:

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.

This language plainly supports federal prohibitions on “migration” after 1808, and by implication, more general regulation of immigration. Yet the clause has long been discounted as textual evidence of federal authority to regulate immigration because of its historical connection to slavery. The prevailing view of the clause is that “such persons” was purely a euphemism for enslaved individuals for the benefit of those founders who found explicit reference to slavery indelicate or who hoped to shortly abolish it. According to this view, “migration” was inserted alongside “importation” just to clarify that it was not things but people at issue.

This Article debunks the traditional view that the connection between “migration” and “importation” was a mere semantic nicety. Part I of the Article describes the history of the Migration or Importation Clause in order to explain its linkage between immigration and slavery. It follows the interpretative pathway of the clause through the Constitutional Convention, the Alien and Sedition Act debates, the debates over the Missouri Compromise, and several nineteenth century Supreme Court cases. Throughout this path, slavery influenced the clause's interpretation in different ways at different moments. Professor Walter Berns, who has written the seminal scholarship on the Migration or Importation Clause, labeled the argument that the clause authorized federal regulation of immigration the “Southern interpretation” and argued that it was part of an effort on the part of Southerners to resist regulation of the interstate slave trade. Yet a broad view shows that the interpretation that Professor Berns ascribed to Southerners was not just a regional one. Rather, Berns's interpretation is consistent with the statements of the framers during and immediately after the convention. Conversely, some Southerners, like Chief Justice Taney, opposed the “southern interpretation,” arguing that the Migration or Importation Clause dealt with a single issue: the slave trade.

Slavery was central at almost every moment in the nineteenth century immigration debate. Despite the traditional account that Southerners resisted federal action on immigration, some Southern politicians like Representative William R. Smith of Alabama were leaders in an antebellum movement for federal immigration reform, justified in part by reference to the Migration or Importation Clause. Slavery was also the impetus when Congress passed the Anti-Coolie Act of 1862, as part of an abolitionist effort to prevent Asian contract laborers from replacing enslaved workers under conditions approximating slavery. The slavery paradigm impacted the construction of early immigration legislation whether it was slavery's defenders or opponents who were proposing it.

Part II offers an originalist interpretation of the Migration or Importation Clause. The early debates over the meaning of the clause provide powerful evidence that the clause references a federal power to regulate immigration after the year 1808. Part III considers the implications of this analysis. It argues that the Migration or Importation Clause implies a power under the Commerce Clause to regulate immigration, since the Commerce Clause was considered the presumptive basis for Congress to regulate the slave trade after 1808. This, in turn, offers grounds to reconsider the plenary power doctrine, which is based on the notion that federal immigration power is constitutionally unenumerated and inherent in sovereignty. There is precedent for judicial review of Congress's Commerce power, which erodes the exceptional judicial deference that is a mainstay of plenary power.

Part IV considers the legacy of slavery in immigration law. Many have argued that the Migration or Importation Clause cannot relate to immigration because of its close connection to slavery. Yet the history of both slavery and immigration in the United States reveal that the two are historically interconnected, making the Migration or Importation Clause an apt, if unsettling, instrument for addressing the two issues. The debates at the Constitutional Convention show that for some founders, like George Mason, Oliver Elsworth, and Charles Pinckney, immigration and slavery were two sides of a coin--two systems for extracting labor and wealth in the new country. The rampant exploitation of undocumented workers in the American economy today is a legacy of this historical relationship between slavery and immigrant labor. The latter survives as a vestige of the former.

The history and language of the Migration or Importation Clause is consistent with an immigration system that today facilitates the exploitation of poor immigrant workers. After the labor reforms of the New Deal and Civil Rights movement, the United States is a very different place for workers. Yet for millions of undocumented workers, it is as if these reforms never happened; for the most part they continue to labor under a laissez faire system of robber baron-style capitalism. One way to resist this system is to rely on the radical vision that abolitionists used to dismantle slavery. By embracing this vision, it is possible to consider reforms that might otherwise seem impossible, like a right to employment for undocumented workers in the United States, and the legal protections that go with it.

[. . .]

Taken together, immigration and slavery tell the story of migration in the United States. Throughout the country's history, the two have bled together, with the Migration or Importation Clause serving as a porous boundary. It is true that the exploitation faced by immigrants cannot compare to the lasting and intergenerational harms caused by slavery; immigration has created opportunities for generations of immigrants and their progeny in the United States, while the vestiges of slavery have reliably reproduced inequality for Black Americans. But it is also true that the immigration system has facilitated the existence of a large population of undocumented immigrant workers and perpetuated the conditions under which they experience rampant exploitation. This is one legacy of the Migration or Importation Clause.

Another legacy of the Migration or Importation Clause is the United States' diverse and pluralistic society--one made possible by both slavery and immigration. This irony suggests the possibility of continued evolution. First, the history of the Migration or Importation Clause calls for a doctrinal reevaluation of the plenary power doctrine and creates the possibility for more meaningful judicial review in the immigration arena moving forward. Second, legislative reforms that seem to face insurmountable political hurdles today--like a right to lawful employment for undocumented workers in the United States--seem possible when viewed in the historical context of slavery. The history of the United States is not just one of enslavers and profiteers, but also of abolitionists and visionaries, who even during the era of Dred Scott had the faith to fight for a better future.

Associate Professor, University of Idaho College of Law.