On “Mobility and Sovereignty: The Nineteenth-Century Origins of Immigration Restriction”
In the September 2022 special issue of the Journal of American History, Kevin Kenny’s article, “Mobility and Sovereignty: The Nineteenth-Century Origins of Immigration Restriction,” powerfully connects slavery, Indian removal, and state policies regulating mobility to trace the constitutional and statutory origins of immigration restriction in the nineteenth century. He explains how immigration policy moved from the local to the national level before 1882 and offers readers a clear understanding of how “police power” encompassed huge swaths of people whose mobility was constitutionally and politically assigned to state control. Kenny’s article demonstrates how, throughout the antebellum era, state laws regulating immigration intersected with laws regulating the movement of African Americans, both free and enslaved. The existence, abolition, and legacies of slavery, as Kenny shows, dictated immigration policy and informed Supreme Court decisions on that policy throughout the nineteenth century. (From Maddalena Marinari’s introduction, “The 1921 and 1924 Immigration Acts a Century Later: Roots and Long Shadows.”)
When Maddalena Marinari and Erika Lee invited me to contribute an article to a special issue of the Journal of American History marking the centenary of 1920s immigration restriction laws, my task was to trace the constitutional, statutory, and political developments in the nineteenth century that made a national immigration policy possible in the first place. My article examined immigration in a period when slavery and westward imperial expansion were the dominant themes in American history.
Here, I want to reflect on three questions I raised in the article and how I set about answering them: Who claimed authority over immigration in a slaveholding republic? What role did Chinese immigration play in this story? And how is the nineteenth century relevant to debates about immigration today?
The question of who has authority over immigration in the United States may seem like it has a self-evident answer. After all, it is a truism that regulating immigration and national borders is a federal matter today. Yet, other than some passenger laws regulating conditions on vessels, the federal government played virtually no role in immigration policy before the Civil War. For most of the nineteenth century, the states, rather than the federal government, controlled immigration.
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.
If the Supreme Court invalidated state laws excluding or taxing foreign paupers, what would become of similar laws in southern states regulating the arrival of free Black sailors, excluding free Black people from entry, and mandating the expulsion of enslaved people upon manumission? Or of laws in both the North and the South regulating the movement of African Americans, both free and enslaved?
When the Supreme Court considered state laws that imposed taxes and bonds on passengers in the Passenger Cases of 1849, the justices were so divided on these questions that they issued eight separate opinions. These cases remain baffling to historians of immigration unless they are read in the context of slavery. Five of the justices agreed, on various grounds, that the immigration laws of New York and Massachusetts violated federal commerce power. The other four, led by Chief Justice Roger Taney, warned that overturning state immigration laws would lead to federal “tyranny”—a codeword for any threat to the interests of the slave states. If Congress could control mobility to the extent claimed by the majority in the Passenger Cases, Taney warned, it could decide for each state “who should or should not be permitted to reside among its citizens.” Black people, he believed, were not entitled to move freely within the United States. In Dred Scott v. Sandford (1857), Taney pushed this logic to its dreadful conclusion, ruling that no African American, free or enslaved, could be a citizen of the United States.
The majority decision in the Passenger Cases had no practical impact on immigration policy, as New York and Massachusetts simply converted their passenger taxes into nominally optional commutation fees (as an alternative to posting bonds). Not until 1875, with slavery abolished, did the Supreme Court rule unequivocally and unanimously, in Henderson v. New York and Chy Lung v. Freeman, that power over immigrant admissions lay exclusively with Congress under the commerce clause.
Finding the right title for my article was quite a challenge. I needed words that would connect immigration with African American history and Native American history. The words I ended up using, “mobility” and “sovereignty,” seemed to capture my argument nicely. But the tight word limit prevented me from elaborating on either term.
The meaning of mobility is clear enough. Along with laws and policies regulating the admission, exclusion, or expulsion of foreigners, I examine three other kinds of mobility that intersected with immigration: the return of fugitive slaves, the removal of free Black people overseas, and the expulsion of Native Americans to the interior. In all three cases, in contrast to immigration, the federal government played a leading role.
By sovereignty I mean a claim to authority that can be grasped only in its particular and evolving historical contexts, rather than defined a priori as a set of abstract precepts. Claims to control migration in the nineteenth-century United States were part of a constitutional argument about who had the right to control borders, mobility, and community membership in the age of slavery and emancipation.
In the article, I examine the legal ideas and political debates that produced and justified laws controlling the mobility of immigrants and Black people. I focus on the logic of sovereignty and race as expressed in judicial opinions and decisions, legislative debates, statutes, and official reports. Having spent most of my career writing social history “from the bottom up,” I expanded my horizons in this project by writing immigration history from a legal, constitutional, and political perspective.
Viewed this way, the key turning point in nineteenth-century immigration history was the Civil War and Reconstruction. The secession of eleven southern states and the abolition of slavery removed the political and constitutional obstacles to a national immigration policy. As the balance of national power shifted from the local to the federal level during the Civil War and Reconstruction, so too did authority over immigration. Yet it would be a mistake, I argue in the article, to think that if slavery had been removed a generation or two earlier, European immigration would therefore have been regulated, let alone restricted sooner. Clarifying this point, for me, was an important breakthrough in writing the article.
Even if the federal government had enjoyed unquestioned authority to restrict immigration before the Civil War, there is no reason to believe that it would have done so to any significant extent. Congress, following the example set by the states, might have excluded certain vulnerable or undesirable passengers, yet nobody before the late nineteenth century (not even the anti-Irish Know-Nothings in the 1850s) wanted large-scale numerical restriction of European immigration.
Some nativists called on Congress to extend the waiting period for naturalization or to regulate the assisted migration of paupers, but to no avail; demand for immigrant labor was too high. Admission of European foreigners remained the norm until the 1920s. Therefore, even though the Civil War and Reconstruction made immigration regulation and restriction possible at the national level, it did not make it inevitable. What was the historical contingency that tipped the balance in favor of federal control?
The catalyst was the arrival of large numbers of Chinese laborers. Once the Supreme Court ruled that Congress, rather than the states, had power over immigration, politicians in the American West realized that a national law restricting Chinese immigration would be much more effective than anything they could achieve at the state level and pressured Congress to act.
The federal anti-Chinese laws passed in the 1870s and 1880s, as I point out in the article, had precedents in the antebellum South. There, free Black people were required to register and carry papers to demonstrate their status and their entitlement to residency, could be banished from their states, and were often denied re-entry if they left. At the same time, anti-Chinese restrictionists used the rhetoric of antislavery to frame their arguments, insisting that so-called coolie laborers should be excluded from the United States because they were unfree.
“The Only One Barred Out.” In this caricature of the Chinese Exclusion Act of May 6, 1882, published in Frank Leslie’s Illustrated Newspaper the month before the act became law, a well-dressed Chinese man embodying “Order” and “Industry” sits dejected outside the Golden Gate of Liberty as the sign to his right declares “Communist, Nihilist, Socialist, Fenian & Hoodlum Welcome but no Admittance to Chinamen.” Reprinted from Frank Leslie’s Illustrated Newspaper, April 1, 1882. Courtesy Library of Congress, LC-DIG-ds-11861.
To justify Chinese exclusion, the Supreme Court ruled in Chae Chan Ping v. United States (1889) that control over national borders was an attribute of national sovereignty and assigned this power to the “political branches” of the federal government (i.e., the executive and legislature) with minimal interference by the courts. As I note in the article, the federal government also deployed this form of plenary power against Native Americans to undermine their sovereign control over the national territory claimed by the United States.
The doctrine of plenary power articulated in 1889 has provided the foundation of U.S. immigration policy ever since. In 2018, the Supreme Court invoked Chae Chan Ping in upholding Donald Trump’s travel ban on people from predominantly Muslim countries. This is just one example of how an article about the nineteenth century contributes to the larger goal of the JAH special issue—to help us understand xenophobia and the immigration debate today.
Some of the origins of “crimmigration”—the nexus between immigration and mass incarceration—also lie in the nineteenth-century story I tell. These include the imprisonment of free Black sailors from Britain and northern states when they visited southern ports in the antebellum era; the administrative precedents for deportation set by the Fugitive Slave Act of 1850, with its arbitrary procedures and lack of due process; and the Geary Act of 1892, which extended the exclusion of Chinese laborers for ten years, required those legally resident to carry certificates with photo IDs, and mandated imprisonment and hard labor prior to deportation for those in the country illegally.
Many of the tensions in contemporary immigration federalism, moreover, have their origins in the nineteenth century. The national government controls the admission, exclusion, and deportation of immigrants, but cities, counties, and states continue to determine how immigrants are treated once they have entered the country.
Local policies today point in two contrary directions. On the one hand, measures like Arizona’s SB1070 (2010) seek to monitor, punish, and deter immigrants. On the other hand, the sanctuary movement aims to provide shelter to immigrants and refuses to enforce federal laws—just as personal liberty laws in the antebellum era declared that northern states would not serve as agents of federal fugitive slave policy. This bifurcation points to a version of states’ rights which, rather than upholding racial hierarchies as so often in the past, conceives of local sovereignty as encompassing an obligation to protect all residents living under a given jurisdiction, regardless of their origin or background.
Writing “Mobility and Sovereignty” for the JAH helped me understand three key questions in U.S. immigration history. Which level of government controlled migration in the nineteenth century and on what grounds? Why was Chinese exclusion such an important turning point? And why does nineteenth-century history still matter today?
Kevin Kenny is Glucksman Professor of History at New York University and author of The Problem of Immigration in a Slaveholding Republic: Policing Mobility in the Nineteenth-Century United States (Oxford University Press, 2023).Posted by