The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In a recent Boston Globe symposium on "Editing the Constitution," prominent conservative columnist Jeff Jacoby makes the case for a constitutional amendment imposing severe limits on government power to exclude immigrants:
The Framers of the Constitution gave the federal government no authority to restrict peaceful immigration. For the first century or so of US history, most foreigners wishing to move to the United States were legally free to do so. The Constitution delegates many specific powers to the federal government, but a general right to bar or expel immigrants is conspicuously not among them.
During the national debate over the notorious Alien and Sedition Acts of 1798 — which (among other provisions) allowed President John Adams to unilaterally deport immigrants he deemed dangerous — James Madison and the Virginia General Assembly denounced the laws for investing the president with "a power nowhere delegated to the federal government."
Not until 1882 was there a significant federal law curbing immigration: the unabashedly racist Chinese Exclusion Act, which effectively slammed the door on immigration from China. Instead of striking down the law as unconstitutional, the Supreme Court upheld it on the grounds that the right to exclude foreigners for any reason was an "incident of sovereignty belonging to the government of the United States." That decision — by the same court that a few years later endorsed racial segregation in Plessy v. Ferguson — erased a core human right that the authors of the Constitution had never intended to curtail: freedom of immigration.
Plessy was eventually repudiated. But the assumption that the government has plenary power over immigration hardened into conventional wisdom. Today, the courts defer to virtually any restriction on immigration, including those based on national origin, political viewpoint, or religion; those based on family connections; and those based on numerical quotas.
To restore the freedom to immigrate intended by the Founders, a brief amendment should be added to the Constitution:
Neither the United States, nor any State, shall restrict immigration from nations with which the United States is not in a state of war, unless such restrictions are narrowly tailored to the advancement of a compelling government interest.
Under such an amendment, explains Ilya Somin, a professor of law at George Mason University and the author of "Free to Move: Foot Voting, Migration, and Political Freedom," federal immigration restrictions would be presumed unconstitutional, much like laws that discriminate by race or silence political speech. That presumption could be overcome when necessary to keep out foreigners posing a genuine threat to public safety, public health, or national security, each of which is a "compelling government interest." By and large, however, peaceful individuals from any country would be free to move to the United States without impediment — just as individuals from one state may move freely to any other state.
As Jacoby recognizes, his proposed amendment is a modified version of one that I first developed for a New York Times symposium on constitutional amendments in August. The Times editors decided to reduce the number of contributions in their symposium, and mine was one of those that got cut.
Among other things, it was my idea to subject immigration restrictions to the "strict scrutiny" test used to review restrictions on racial and ethnic discrimination. This would enable courts to uphold restrictions in the very rare cases where they are the only way to prevent some great harm, but invalidate the vast bulk of restrictions that cannot pass such a test.
There are two differences between Jacoby's proposal and my original version. First, Jacoby's restricts not only federal power to bar migrants but also that of the states. Under the original meaning, federal power over immigration was severely limited, but states could and sometimes did bar migrants of various kinds, often based on racial, ethnic, and class prejudices, particularly against immigrants from Ireland.
Despite its departure from the original Constitution, Jacoby's version of the amendment is better than mine on this point, and I am happy to endorse it. States, like the federal government, should not have a general power to exclude people based on their parentage and place of birth. In addition, states—like the federal government—have plenty of ways to address possible negative side-effects of migration through "keyhole solutions" that are less harmful to both immigrants and natives than exclusion is.
The second difference between the two proposals is that mine also included the following section, following immediately after the one in Jacoby's article:
Section 2: Constitutional Rights Apply to Immigration Laws
Laws and regulations restricting migration are fully subject to all constitutional rights, privileges and immunities limiting the authority of the United States and the several States.
This would eliminate the enormously harmful—and, on originalist grounds, unjustified—double standard under which the Supreme Court has largely exempted immigration restrictions from the Bill of Rights and other constitutional constraints that limit virtually every other exercise of government power.
Jacoby notes this issue in his column, but doesn't include a provision specifically focused on addressing it. On the other hand, if all immigration restrictions are subject to strict scrutiny anyway, my Section 2 becomes far less significant. It would still have bite mainly in cases where constitutional rights impose even tighter limits on the government than strict scrutiny does.
Obviously, neither I nor (I would guess) Jacoby believe this amendment has any real chance of getting enacted in the near future, if ever. The purpose of the idea is not so much to stimulate immediate political action, as to help advance public debate over immigration.
As Jacoby explains in his column, there is good reason to return to the much more open approach to immigration of the Founding era:
A return to the open door policy of America's first 100 years would not mean that the nation's borders no longer had meaning, nor would it be tantamount to a surrender of US sovereignty. Washington would continue to have full authority to repel foreign armies from those borders and to enforce its laws and collect taxes within them….
Who would gain from such an amendment? The entire nation. Immigration is the great growth hormone of American history. More immigrants means more economic development, more innovation, more cultural richness. Contrary to nativist shibboleths, immigrants are more law-abiding than US-born residents, they rapidly assimilate and acquire English proficiency, and they are highly patriotic.
"America is open to receive not only the opulent & respectable Stranger," wrote George Washington in 1783, "but the oppressed & persecuted of all Nations & Religions, whom we shall welcome to a participation of all our rights & privileges." That was the right policy when the United States was small and weak. It remains the right policy for a nation that has grown into history's most influential superpower. An immigration freedom amendment would restore the vision of the Founders by once again opening the door to virtually all would-be Americans, whoever and wherever they are.
UPDATE: It's worth noting that the Boston Globe symposium includes many other proposals for constitutional amendments, including this one by Volokh Conspiracy co-blogger Stephen Sachs, arguing for an amendment giving individual state legislatures more power to initiate constitutional amendments (as opposed to ratify ones proposed by Congress or by a convention of the states).