10 things to know about US immigration policy in the nineteenth century

In the United States today, the federal government controls the admission, exclusion, and removal of immigrants. Yet in the century after the American Revolution, Congress played only a very limited role, setting a policy for naturalization and regulating conditions on board passenger ships. Other than that, the states controlled immigration until the 1870s.

Slavery and its legacies shaped American immigration policy as it moved from the local to the federal level over the course of the nineteenth century. The Civil War removed the political and constitutional obstacles to a national immigration policy. This national policy was first deployed to exclude Chinese laborers with the Supreme Court using Chae Chan Ping v. United States (1889) to lay down the doctrine of plenary power that later provided the foundation of US immigration policy in the twentieth century. The case was invoked as recently as 2018 when the Court upheld President Donald Trump’s travel ban on people from predominantly Muslim countries. Similarly, some of the origins of today’s “crimmigration” system—the nexus between immigration and incarceration—lie in the nineteenth century. 

Read on to learn 10 things about US immigration policy in the nineteenth century that give context to some of the immigration concerns we face in the US today.

1. Other than naturalization, the Constitution provided no guidance on immigration

The Constitution authorizes Congress to establish a uniform rule for naturalizing immigrants as citizens after they have been admitted to the United States. Congress passed a law in 1790 laying down the naturalization system still in place today: citizenship after a probationary period of residence, evidence of good character, and an oath renouncing foreign allegiance. Under this law, an immigrant had to be a “free White person” to be eligible for citizenship. Not until 1870 was the right to naturalize extended to people of African origin. Asian immigrants remained barred from citizenship until the middle of the twentieth century. Strangely for a country that attracted so many immigrants, the Constitution says nothing else about immigration.

2. The states controlled the admission of immigrants until the 1870s

In the absence of a federal policy, the states controlled immigration. America’s borders were not open in the nineteenth century, but neither were they closed the way they are today. States and towns quarantined passengers who carried contagious diseases, and required ship captains to post bonds or pay taxes for foreign paupers and mentally or physically disabled passengers. A small number of immigrants were turned away, but nearly all were admitted. In the 1870s, the Supreme Court ruled that Congress rather than the states had authority over immigration, but admission remained the norm for Europeans until the 1920s.

3. The states regulated the movement of free black people as well as immigrants

In the South, free black people had to register and carry papers proving their status and their right to residency in the state. Many southern states banned black people from migrating or returning, required formerly enslaved people to leave, and jailed free black sailors – both native-born and foreign-born – for the duration of their stay in port. Territories and states in the Old Northwest (today’s Midwest) also restricted or prohibited the entry of free black people. Male immigrants of European origin, by contrast, could move freely throughout the United States, secure employment, naturalize as citizens, vote, and hold political office.

4. Congress potentially had power over immigration under the commerce clause, but slaveholding states found that power threatening

The commerce clause of the US Constitution gave Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” But did this power cover migration, both into the United States and between the states? Throughout the antebellum era, the courts skirted around this question rather than confronting it directly.

Shipping companies, resentful of interference in their business, brought court cases against state laws, arguing that these laws violated federal power under the commerce clause. Slaveholders, by contrast, feared that Congressional control over one kind of mobility, immigration, would threaten their power over the mobility of free black people or even the interstate slave trade. If the Supreme Court invalidated a Massachusetts law imposing taxes or bonds on foreign paupers, what would that mean for laws in South Carolina and other southern states jailing free black sailors, or laws in both the North and the South regulating the movement of free black people?

5. The states controlled citizenship as well as immigration policy before the Civil War

Before the Civil War, towns and states made their own rules for civil and political membership. Country of birth was less important than race or gender in defining who belonged to the community and what privileges they enjoyed. Women were citizens but, if married, were prohibited by coverture laws from owning property, making contracts, and earning wages. Immigrant wives assumed the citizenship status of their husbands automatically after 1855. African Americans were denied citizenship except in the Northeast, where black citizens faced restrictions on voting, holding office, and serving in the militia, as well as residential and educational segregation.

6. The Fourteenth Amendment (1868), by writing the principle of birthright citizenship into the Constitution, provided a powerful mechanism for integrating immigrants and their children

Forged in a war to end slavery, the Fourteenth Amendment extended national citizenship to everyone born or naturalized in the United States and subject to its jurisdiction (i.e., everyone other than children of foreign diplomats, children of soldiers in an invading army, and Native Americans living on tribal lands as members of their own sovereign nations). The American-born children of immigrants, therefore, were citizens at birth—including the children of Chinese immigrants prohibited by law from becoming citizens themselves. By guaranteeing due process and equal protection to every “person” living within the jurisdiction of the United States, the Fourteenth Amendment extended fundamental protections to all immigrants, regardless of whether they had naturalized.

7. The Civil War and Reconstruction marked a turning point in US immigration policy

With eleven slaveholding states absent from the union, Congress began to regulate immigration for the first time during the Civil War, passing an act in 1862 prohibiting American involvement in the transportation of Chinese “coolie” laborers to foreign ports and an act in 1864 giving federal recognition to short-term contracts for the importation of European workers during the wartime emergency. Reconstruction created federally protected rights for all Americans, but it also created a national state capable of regulating immigration much more effectively than the states, with less interference by the courts. Aware of this fact, restrictionists in the American West called on Congress to exclude Chinese laborers. 

8. The Chinese were the first targets of federal immigration policy in the postbellum era

The Page Act (1875), targeting suspected prostitutes, required Chinese women to undergo consular inspection and obtain certificates demonstrating that they were not immigrating for “lewd or immoral purposes.” The Chinese Exclusion Act (1882) barred immigration by Chinese laborers for ten years. Renewed in 1892, this ban remained in place until World War II. The techniques of exclusion, registration, punishment, and deportation deployed against Chinee laborers had precedents in laws policing the internal mobility of free black people in the antebellum South.

9. Federal policy expanded from Chinese exclusion to regulation of immigration more generally

A general immigration act passed in 1882, modeled on the old system of state laws, and designed and implemented by officials from New York and Massachusetts, levied a head tax on all foreign passengers and excluded those likely to become a public charge. A second general immigration act, passed in 1891, shifted the administration of national policy away from the states and toward the federal government and expanded the list of excludable and deportable classes.

10. The Supreme Court ruled that power over immigration was inherent in national sovereignty and assigned that power to the president and Congress

In Chae Chan Ping v. United States (1889), the Supreme Court ruled that the power to control its borders was inherent in the sovereignty of the United States as an independent nation. As a matter of national security, this power lay with the federal legislature and executive and was largely immune from judicial review. In Fong Yue Ting (1893), the Court extended the same power to deportation. This doctrine of plenary power over immigration, inherent in sovereignty and assigned to the “political” branches of government with minimal interference by the courts, placed immigrants in a separate category of law, laying the basis for US immigration policy in the twentieth century.

States and cities today can no longer decide whom to admit, exclude, or deport the way they did before the Civil War. They continue, however, to regulate immigrants’ lives after they arrive in the country. Some states monitor or punish immigrants by restricting access to drivers’ licenses, public benefits, and education, requiring employment verification, penalizing the leasing of property to the undocumented, or prohibiting day laborers from congregating in public spaces. Other states provide sanctuary to immigrants, protect them against discrimination, and assist their integration into society. With Congress gridlocked on immigration reform, long-standing tensions in immigration federalism remain as relevant as ever.

_{Featured image by Alex Boyd on Unsplash (public domain)}