A brief review of the history of US immigration law

Friday, June 25, 2010
A brief review of the history of US immigration law
Thomas L. Knapp

Smitty detects a "dissonance ... when the word 'illegal' is used with respect to immigrants."

As well he should, since there's no such thing as an "illegal immigrant."

A law repugnant to the Constitution is void, the Constitution reserves powers not delegated to the United States to the states or to the people, and the Constitution delegates no power to the United States whatsoever to regulate immigration.

None. Zero. Zip. Zilch. Nada. Bupkus. It ain't there.

The anti-Federalists noticed it wasn't there and bitched about it (citing the lax moral climate of immigration-unrestricted Pennsylvania -- see the letters of "Agrippa," a/k/a John Winthrop) before the Constitution was ratified. The Federalists, favoring large-scale immigration from Europe, had no answer for them.

Congress operated for the first 89 years of the Republic on the assumption that since the framers hadn't seen fit to write such a power into the Constitution, they hadn't intended for Congress to exercise that power.

They passed naturalization laws, which the Constitution provided for.

They also passed a few laws which had the effect of making state immigration laws binding on ships entering federal ports in said states (and assessing fees/fines for enforcing those laws on behalf of those states).

But federal regulation of immigration as such was non-existent.

It wasn't until 1875 that an activist Reconstruction-era Supreme Court utilized its magical powers to "discover" a federal power to regulate immigration (a power that Madison, Hamilton, Jay et al had apparently somehow put in there without knowing it or noticing it or ever even once mentioning it), and it wasn't until 1882 that Congress exercised that newly discovered power with the Chinese Exclusion Act.

The subsequent 128 years of American history have been a living demonstration of why the framers left a federal power to regulate immigration out of the Constitution -- because it was, and remains, one of the fucking stupidest, most destructive ideas imaginable.


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