The main purpose of my article is to demonstrate how the existence, abolition, and legacies of slavery shaped American immigration policy as it moved from the local to the federal level over the course of the nineteenth century. I develop this argument in greater detail in The Problem of Immigration in a Slaveholding Republic, the book I was completing as I wrote the article.
The natural place to look for authority over immigration in the United States is the Constitution. Yet, strangely for a country that attracted and needed so many immigrants, that document says nothing about their admission, exclusion, or expulsion. The Constitution contains several provisions indirectly related to immigration, including the taxing and spending clause, the war powers clause, and the treaty powers clause, but they offer limited authority at best. The Constitution also authorizes Congress to establish a rule for naturalizing immigrants—but this policy applies to foreigners after they arrive in the United States.
Throughout the antebellum era, states and towns regulated mobility by deploying their “police power.” Today, the term “police” usually refers to a body of people charged with keeping public order and investigating crimes. In the nineteenth century, it referred more broadly to the sovereign power of local communities to regulate the health, safety, morals, and general welfare of their residents.
States and towns, insisting that it was their right and obligation to protect the public good, passed laws and ordinances that: prohibited the arrival of convicts from abroad; required ship captains to post bonds or pay taxes for foreign paupers and disabled passengers who might become public charges; deported paupers to their towns, states, or countries of origin; quarantined passengers who carried contagious diseases; patrolled the movement of free and enslaved Black people within and between the states; and jailed free Black sailors for the duration of their stay in southern ports.
When the Supreme Court examined the constitutionality of state-level immigration laws, it turned most frequently to the commerce clause, which gave Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” As I show in the article, the constitutional debate over immigration in the nineteenth century pitted local police power against national commerce power. Was migration—internal and external—a form of commerce and, if so, did Congress have power to regulate it? Or did authority rest with the states? The courts could not answer these questions before the Civil War, because authority over immigration was tightly entangled with the institution of slavery and mobility of free Black people.