by Ryan McMaken, Mises Institute
In recent years, Judge Andrew Napolitano has annoyed some anti-immigration activists by pointing out what the text of the US Constitution seemingly makes clear: “[T]he Constitution itself — from which all federal powers derive — does not delegate to the federal government power over immigration, only over naturalization.”
Napolitano isn’t the first one to point this out, though, and those who have been observing this debate for a long time, will remember that this has been a simmering debate among conservatives and libertarians for many years. Making the case that the text does support federal intervention in immigration is especially important to conservatives who support an “originalist” view of the Constitution. After all, if it really is the case that the original intent of the Constitution was not to empower the federal government to regulate immigration, then it would be impossible for these originalists to support ongoing federal immigration interventions without being accused of hypocrisy or inconsistency.
In response, originalists have suggested a number of theories, including the assertion that the Migration or Importation Clause grants this power. Ilya Somin has effectively dismantled this claim in his 2016 article on the topic.
Other far-less-sophisticated claims have been made as well, such as the claim that immigration is the equivalent of a military invasion, or that naturalization pretty much means the same thing as immigration. Rarely are these claims convincing to observers who are not already vehemently anti-immigration.
With this essay, however, I want to largely ignore modern legal debates and instead approach the originalists’ claim by looking at how nineteenth-century American policymakers themselves viewed the proper role of the federal government in restricting immigration.
At this point, you can probably already guess where I’m going with this: it turns out that if we look at immigration regulation and legislation in the first century of the United States, we find that federal involvement in regulating immigration was very rare, and that attempts to federalize the matter repeatedly failed in Congress, where federalization was often regarded as being of d