The Volokh Conspiracy
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Immigration and the Principles of the Declaration of Independence
The principles of the Declaration of Independence and the American Revolution justify free migration rights.
Millions of people around the world know the stirring words of the Declaration of Independence announcing that "all men are created equal" and that they have the rights to "Life, Liberty and the pursuit of Happiness." But relatively few know that, among the grievances the Declaration enumerates as justification for renouncing allegiance to King George III is the following:
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither….
This complaint against the King was aimed at a series of royal orders issued in 1772 and 1773, which forbade the colonies from naturalizing aliens, banned the passage of any laws facilitating that purpose, including laws promoting migration, and overrode a North Carolina law exempting immigrants from Europe from taxation for a period of four years.
It's tempting to dismiss this as just a disagreement over policy. But it actually goes further than that, since it is one of the items on the list of "repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States."
The King's efforts to restrict immigration to Britain's American colonies were not just a flawed policy, the Declaration claims, but a step towards the "establishment of an absolute Tyranny."
Nor was it merely a tyranny over the colonial governments' supposed right to determine immigration policy for themselves. It was also a tyrannical action towards the would-be immigrants.
Many of the leaders of the American Revolution saw the new nation as a refuge for the oppressed of the world. In his famous General Orders to the Continental Army, issued on the occasion of the end of the Revolutionary War in 1783, George Washington stated that one of the reasons the United States was founded was to create "an Asylum for the poor and oppressed of all nations and religions." He expressed similar views on other occasions, including writing to a group of newly arrived Irish immigrants that "[t]he bosom of America is open to receive not only the opulent & respectable Stranger, but the oppressed & persecuted of all Nations & Religions."
Thomas Jefferson, the principal author of the Declaration, similarly wrote, in 1781, that "It [has] been the wise policy of these states to extend the protection of their laws to all those who should settle among them of whatever nation or religion they might be and to admit them to a participation of the benefits of civil and religious freedom." Other leading Founders expressed similar sentiments, including James Madison and James Wilson, among others.
The idea of accepting immigrants without regard to their national origin and religion was an extension of the more general principle that the United States was founded on the basis of universal liberal principles, not ties of ancestry, culture, or faith. This is what the Declaration refers to in the famous passage avowing that all men are created equal and have the rights to life, liberty, and the pursuit of happiness.
There can be no such liberty and equality if where people are allowed to live is limited by their parentage and place of birth. Just as the leaders of the Revolution rejected more traditional hereditary aristocracy, their principles were also at odds with what we might today call the hereditary aristocracy of citizenship, under which only those born to the right parents or in the right place have a right to live in the United States, while all others can be excluded for virtually any reason the government might come up with.
The Founders established a Constitution under which, Madison and most others argued, the federal government had no general power to exclude immigrants. When the Federalist Party pushed through the Alien and Sedition Acts of 1798, giving the president broad power to deport immigrants he deemed "dangerous," Jefferson and Madison denounced the law as both unjust and unconstitutional. They and their allies mobilized such strong resistance to the Alien Friends Act that the federal government never actually managed to deport anyone under it.
When Jefferson became president in 1801, he allowed the Act to expire, and federal immigration policy remained almost completely free of restrictions until the enactment of racially motivated exclusionary laws targeting Chinese immigrants in the 1870s and 1880s. The successful resistance to the Alien Acts was a triumph for liberty and equality that deserves to be far better known than it currently is.
None of this proves that America's founding generation was free of prejudices against immigrants. The Federalist Party, as noted, sought to use the Alien Friends Act to deport many immigrants, fearing that they might spread French revolutionary ideas to the United States and - perhaps even worse from the Federalist point of view - support the rival Democratic-Republican Party.
Despite his defense of open immigration on many occasions, Thomas Jefferson wrote, in his 1782 Notes on Virginia, that America had reason to fear immigrants from "absolute monarchies," because "[t]hey will bring with them the principles of the governments they leave, imbibed in their early youth; or, if able to throw them off, it will be in exchange for an unbounded licentiousness, passing, as is usual, from one extreme to another." As with many later Americans who feared that immigrants would spread harmful political political values, Jefferson did not give sufficient weight to the reality that people fleeing oppressive regimes usually do so precisely because they abhor those governments, not because they want to recreate them elsewhere.
But even in that same passage, Jefferson rejected the idea of barring immigrants from oppressive governments, instead recognizing that "[i]f they come of themselves, they are entitled to all the rights of citizenship." He merely "doubt[ed] the expediency of inviting them by extraordinary encouragements." Later, of course, Jefferson took a more favorable view of the political impact of immigrants - perhaps, in part, because many of them supported him and his party!
As on many other issues, particularly slavery, the Founders didn't always live up to their own principles when it comes to immigration. The Federalist advocates of the Alien Acts obviously did not. Nor did Congress when it enacted the Naturalization Act of 1790, and limited eligibility for citizenship to those immigrants who were "free white person[s]." Black immigrants were not made eligible for citizenship until 1870. Explicit racial restrictions on naturalization were not fully ended until 1952.
Restrictions on naturalization did not amount to restrictions on immigration itself. Black immigrants came to the United States in substantial numbers even when many of them were ineligible for citizenship, beginning with numerous refugees from Haiti in the 1790s. Still, black immigrants in this era suffered severe discrimination, as did native-born free African-Americans (to say nothing of the millions of slaves).
But despite these unjust limitations, the principles of the Declaration of Independence did lead to the establishment of a nation that, for the first century of its history, had very few limitations on immigration, and thus became a refuge for millions of people fleeing poverty and tyranny.
Washington's vision of a refuge for "the oppressed & persecuted of all Nations & Religions" was never fully achieved. But the early United States did realize it to a astonishingly impressive degree. In some important ways, the early republic was actually more enlightened on these matters than we are today. Our immigration policies bar the vast majority of those seeking refuge from oppression, and even include such perversions as barring escaped slaves on the grounds that the forced labor they performed for terrorist organizations qualifies as "material support for terrorism" rendering them ineligible or asylum.
Jefferson and Washington were far from the only ones who saw a connection between openness to immigration and America's founding principles of liberty and equality. The great African-American abolitionist Frederick Douglass made much the same point in an 1869 speech, in which he compared immigration restrictions to racial discrimination, and argued that America must be a "composite nation" open to to people of all races and cultures who wished to settle there.
Abraham Lincoln, who was a strong supporter of open immigration, also saw the connection between immigrant rights and the Declaration of Independence:
When [immigrants] look through that old Declaration of Independence, they find that those old men say that "We hold these truths to be self-evident, that all men are created equal"; and then they feel that that moral sentiment, taught in that day, evidences their relation to those men… and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh, of the men who wrote that Declaration; and so they are.
The America of the Founding era and of Lincoln's day didn't fully live up these high ideals. The same remains true even today, in some respects even more so. But, at its best, the nation has indeed been a refuge for the oppressed, and they have been major contributors to its growth and success. Immigrants and natives alike have much to gain from a more consistent adherence to the principles of the Declaration of Independence.
On immigration, as elsewhere, we would do well to heed Lincoln's admonition that the Declaration "set up a standard maxim for free society which should be familiar to all: constantly looked to, constantly labored for, and even, though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence and augmenting the happiness and value of life to all people, of all colors, every where."
