The Volokh Conspiracy
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In a recent post at the Originalism Blog, legal scholar Rob Natelson criticizes me for relying on James Madison's Report of 1800 to support the conclusion that the original meaning of the Constitution does not give the federal government a general power to restrict immigration. Natelson contends that the Report has little relevance to the original meaning of the Constitution, and that it doesn't really address the issue of immigration restriction, in any event. In this post, I continue the discussion by respond to Natelson. I think he's wrong on both points.
Natelson's post is the latest contribution to an ongoing debate that began with my post critiquing conservative arguments claiming that illegal immigration qualifies as an "invasion" under under relevant provisions of the Constitution, and thereby empowers federal and state governments to use military force to prevent it. Andrew Hyman, one of those I criticized in that post, responded to me in a post I put up (with his permission) here at the VC blog. I posted a rejoinder in that same post. In both of my posts, I highlighted the passage in the Report of 1800 where Madison denies that immigration qualifies as "invasion" and therefore denies that the Alien Acts of 1798 (and federal immigration restrictions generally) were authorized by the invasion provisions of the Constitution.
While my exchange with Hyman was mostly focused on the "invasion" issue, Natelson broadens the focus by considering the more general relevance of the Report of 1800. He contends that the Report has little relevance for modern debates over federal power over immigration because "it was primarily directed at deportation, and a closer reading of this passage shows Madison was discussing only deportation, not immigration per se." I already addressed this point in some detail in my rejoinder to Hyman, where I pointed out that the Alien Friends Act of 1798 (which Madison, in the Report, argued was unconstitutional in its entirety) actually went far beyond mere deportation authority.
Much the same response applies to Natelson's claim that Madison's argument applies only to aliens who entered the United States legally. The whole point of Madison's position is that the federal government lacked the power to bar the entry of foreigners from countries not at war with the United States. Natelson may well be right to suggest that Madison's position would still allow the US to bar individuals engaged in armed hostilities against the US, even if they were citizens of countries whose governments were not at war with the US government. But merely crossing a border in contravention of a US law does not constitute such—especially if that law were a federal law that Madison denied to be constitutional in the first place. I covered these issues in some detail in my earlier posts addressing the "invasion" issue and Hyman's arguments.
Natelson also makes a more general argument against relying on the Report to shed light on the text and original meaning of the Constitution, based on the fact that it was written a decade after ratification:
There are all sorts of reasons why post-ratification statements are generally useless for showing ratification-era understanding. Here are some:
* Memories fade.
* Ratification-era participants who might have contradicted those statements often were not around to do so: When the 1800 Report was published, such leading participants in the constitutional debates as Benjamin Franklin, Patrick Henry, George Mason, Roger Sherman, Melancton Smith, and George Washington were all dead. John Rutledge was still alive, but suffering from mental illness. Rufus King was abroad. And so forth.
* Incentives change. The same person who, when presenting the Constitution to the public in 1788, had an incentive to characterize the federal government's powers one way, often had an incentive to characterize them differently later on. By way of illustration, the difference is great between Alexander Hamilton's constitutional arguments in Federalist No. 16 (prior to ratification) and in his Report on Manufactures (after ratification).
* Alliances change. In particular, they changed dramatically after the first session of the First Federal Congress, as the case of Madison illustrates: Prior to that time, he was allied with Hamilton. After that time, he was allied with Thomas Jefferson.
* Context and language change.
Using Madison's 1800 Report to show the understanding of the ratifiers a decade earlier is subject to all of those objections.
If this is correct, it invalidates not only the use of the Report of 1800 to shed light on constitutional meaning, but the use of any post-ratification material. Thus, judges, historians, legal scholars, and others are wrong to rely on 1790s debates over the Bank of the United States, the assumption of state debts, the use of foreign affairs powers in US relations with Britain, and France, and much else. The same goes for extensive judicial and scholarly reliance on Reconstruction-era evidence to shed light on the meaning of the Thirteenth, Fourteenth, and Fifteenth Amendment. A high percentage of what we know (or at least think we know) about the original meaning of the Constitution would have to be rejected.
Some of Natelson's concerns here are reasonable. For example, it is true that memories fade and that politicians might opportunistically shift positions in response to new political circumstances and alliances. But I don't think this counsels total or near-total rejection of post-ratification material. The latter is simply too valuable to reject entirely. In many situations—including this one—it gives extensive evidence of understanding of constitutional meaning by the very people who drafted and ratified the provisions in question, often even addressing issues similar to those that led the Constitution (or a given amendment) to be enacted in the first place.
James Madison's views on federal power over immigration are a dramatic example. He was clearly one of the most important drafters of the Constitution, as well as a key participant in the ratification process. And, while it is true that some framers and ratifiers had died by 1800, the audience he wrote the Report of 1800 for included large numbers of people who well remembered the framing and ratification and could be expected to object if they thought Madison got it wrong.
Instead of wholesale rejection, we should—on a case-by-case basis consider whether a given post-ratification statement, whether by Madison or anyone else, is likely to be a product of later political shifts or not. In this case, the answer is probably not. Madison's denial that the federal government had power to exclude "alien friends" is entirely consistent with positions he took during the ratification debates, such as his rejection, in Federalist 42, of claims that the the Migration or Importation Clause of the Constitution (which prevented Congress from barring the "migration or importation of such Persons as any of the States now existing shall think proper to admit" until 1808) implied that Congress otherwise had a general power to "prevent voluntary and beneficial emigrations" (as opposed to restricting the slave trade and the migration of indentured servants). Madison's position here would make little sense if, in fact, he believed that Congress had a general power to exclude migrants anytime it wanted, subject to limitations that would expire in 1808.
Natelson argues that Madison had shifted alliances from Hamilton to Jefferson between ratification and 1800. But, while Madison and Hamilton were allied in seeking ratification of the Constitution, Madison and Jefferson were also close political allies in the 1780s, and always had far more in common on both constitutional and political issues than either had with Hamilton. At any rate, Madison never endorsed the constitutionality of federal restrictions on the migration of "alien friends" and his position on this issue is a natural outgrowth of his generally narrow interpretation of federal power from the ratification debates onwards.
Much more can be said about these issues. Among other things, the "invasion" rationale for immigration restrictions is just one of several that has been advanced to justify federal power over immigration. I discussed many of the others here, and am in the process of working on a much more in-depth academic treatment of these issues. In the present exchange with Hyman and Natelson, I hope only to explain why the invasion theory is flawed, and why Madison's Report both supports that position, and is a relevant and valuable source of evidence.
I thank both Natelson and Hyman for their thoughtful contributions to this debate, and for pushing me to elaborate further on some of the issues involved.