Breaking Away: The Case for Secession, Radical Decentralization, and Smaller Polities

On nearly all sides of the immigration debate, it is generally assumed today that the federal government in the United States ought to be the final word in immigration policy. Efforts by state governments to enforce or adopt immigration policies of their own are struck down by federal courts. Interest groups repeatedly look to Congress and the White House to hand down national policy on immigration.

Federal control of immigration policy is a relatively recent development, however, and it is not until the 1880s that we see the national government displace the states as the primary enforcer of immigration law. And even then, states continued to work in cooperation with the federal government. It was not until the twentieth century that the federal government began to insist that it had a monopoly on immigration law, and that the states were excluded from exercising their own powers in the matter.

In his lengthy article on “The Lost Century of American Immigration Law” in the Columbia Law Review, Gerald Neuman notes that state and local law had been used to restrict migration in the North American colonies—and later the United States.1

The legal framework of these immigration measures had their origins in English poor laws that restricted the movements of paupers, vagabonds, and other alleged undesirables. Neuman notes that after independence, local governments in many places retained control over settlement:

After 1794 [in Massachusetts], persons newly arriving in a town became settled inhabitants if they met certain statutory criteria, such as property ownership, or if they received express permission of the town government.2

The idea was to prevent the permanent settlement of any persons who were likely to become reliant on local charity efforts, or who might be criminals. These restrictions, in fact, were acknowledged and written into the Articles of Confederation in which Article IV states that states retained the powers to limit the movements of “paupers, vagabonds and fugitives from justice.” Neuman further contends that “Although the Constitution omits this qualification from its Privileges and Immunities Clause, the courts continued to assume that paupers had no right to travel.”3

Historical experience in the states confirms that restrictions on free travel did not go away with the new Constitution and indeed new restrictions on incoming migrants from outside the US were introduced.

In his study on state-level immigration laws, Hidetaka Hirota focuses on state laws in Massachusetts and New York where the matter of expelling and limiting new migrants was a matter of perennial concern:

To reduce Irish pauperism, New York and Massachusetts built upon colonial poor laws for regulating the local movement of the poor to check the landing into the state of destitute foreigners. In Massachusetts, an exceptionally strong anti-Catholic and anti-Irish tradition inspired the state legislature to go beyond merely setting entry regulations or excluding the unacceptable. Rather, Massachusetts developed laws for deporting foreign paupers already resident in the state back to Ireland or to Britain, Canada, or other American states. Between the 1830s and the early 1880s, at least 50,000 persons were removed from Massachusetts under this policy. State policies applied to all destitute foreigners, and German immigrants attracted their fair share of nativism. Those expelled from Massachusetts also included American paupers who originally came from other states. Yet it was Irish poverty that generated the principal momentum for the growth of state immigration policy.4

Given the fact that Boston and New York were such popular destinations for the Irish during this period, these two states were the most active in instituting immigration controls. Other states engaged in some efforts, although as Hirota notes:

...Maryland and Louisiana had little interest in restricting European immigration throughout the nineteenth century, while Pennsylvania and California failed to establish sustainable systems of immigration regulation.5

It was these laws that led to some of the earliest legal decisions in the US as to the role of the federal government in immigration law.

Early Supreme Court Cases

Early legal cases illustrated a reluctance on the part of the court to assert federal control of migrants. In New York v. Miln (1837) for example, the Court took up the matter of whether a state could require a docking ship to “to provide a list of passengers and to post security against the passengers from becoming public charges.” The strategy of bonding was often used in which ship owners were forced to post a bond under which the state could be compensated in case the new migrants arriving in said ship turned out to be criminals or paupers dependent on the state.

The court sided with the state, concluding the state was entitled “to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possible convicts, as it is to guard against the physical pestilence, which may arise from unsound and infectious articles imported.”6

However, regulation of immigrants was acceptable to the court so long as the regulation was “not a regulation of commerce, but of police.”7 That is, the court ruled to overturn the state’s ability to impose what were essentially taxes on shipping, while concluding that the state and local governments nevertheless retained the right to regulate the immigrants themselves. This included the right to refuse entry to new migrants perceived to be paupers, criminals, mentally ill, or carrying communicable diseases. As Hirota recounts, these “police powers” resulted in many deportations conducted by state officials.

Moreover, in the “Passenger Cases” of 1849, the court again declined to limit state police powers in regulating immigrants.8 The majority “consensus” which consisted of several different concurring opinions, struck down state efforts to collect taxes and fees designed to fund state efforts at monitoring and controlling migrants. These taxes were ruled to be against the federal powers of regulating maritime law and international shipping. The court failed to establish overall federal supremacy on the matter of immigration, however, and Justice Levi Woodbury emphasized the point in his dissenting opinion:

[I]t is for the State where the power resides to decide on what is sufficient cause for it, whether municipal or economical, sickness or crime; as, for example, danger of pauperism, danger to health, danger to morals, danger to property, danger to public principles by revolutions and change of government, or danger to religion.9

Similarly, according to Neuman, Justice “Peter Daniel invoked at length the Jeffersonian polemics against the Alien Act of 1798 to demonstrate that power over the entry of aliens was vested exclusively in the states.”10 ,11

These cases came in the wake of more notorious episodes during the 1820s and 1830s in southern states in which some states prohibited free black sailors from coming ashore in port cities. Fearing the presence of free blacks would incite slave uprisings, some southern states—but most vigorously South Carolina—essentially adopted “quarantine” laws in which free black sailors were required to stay on their ships or be held in the local jail until they departed again out of port.12 Captains of British ships, which sometimes employed free blacks from British colonies, complained to federal authorities. Ultimately, however, the federal government was unwilling or unable to take steps that ended these policies.

Restricting State-to-State Migrants

The issue of race influenced other restrictions on migration as well. Some states, both north and south, adopted laws designed to restrict the movement of free blacks from state to state. Michelle Slack points out

the Oregon Constitution of 1857, although prohibiting slavery and involuntary servitude, also prohibited the entry or presence of any “negro or mulatto” not already residing in the State at the time of its adoption. Moreover, most free black residents were required to register and prove both their free status and their right to residence within the state. In turn, such documentation was regularly demanded of free blacks under threat of expulsion.13

The State of Illinois also imposed penalties for facilitating “entry by a mulatto.”14 In slave states, the situation was more focused on re-entry. Neuman writes:

Slave state legislation usually barred the entry of free blacks who were not already residents of the state. Penalties were often imposed on persons bringing in free blacks. Over time, some states extended these prohibitions to their own free black residents who sought to return after traveling outside the state, either to a disapproved location or to any destination at all. Slave states often required that emancipated slaves leave the state forever, on pain of reenslavement.15

Although these laws were bound up with slavery and race, they nevertheless established both in the courts and in legislatures that states had the prerogative to prevent entry of certain persons into the states. Practical realities, of course, meant there was mostly free movement between states. As was also the case with the fugitive slave acts, limiting movement of Americans of any color, when it came to state-to-state travel, was exceptionally difficult in nineteenth-century America.16

Congress Shows Little Interest in Regulating Immigrants

Meanwhile, Congress largely ignored the immigration issue beyond regulating naturalization, as mandated in the Constitution. The 1911 report from Congress’s Dillingham Commission on immigration recounts that legislation addressing immigration during the mid-nineteenth century was minimalist, to say the least. The commission notes that most agitation for new immigration legislation stemmed from the Native American Party, also known as the “Know-Nothings.” These efforts failed due to a lack of interest by federal lawmakers in regulating immigration, and also due to doubts about whether or not such efforts were even constitutional. A lengthy quotation from the Commission’s report helps illustrate the Congress’s inaction on the matter:

On January 2, 1855, Representative Wentworth, of Massachusetts, introduced a bill to prevent the introduction of foreign paupers, criminals, idiots, lunatics, and insane and blind persons, but it was laid on the table by a vote of 68 to 83...

February 17, 1855, Senator Jones, of Tennessee, evidently believing it useless to try to pass an act excluding undesirables, sought to have Congress agree to give the matter entirely over to the States, and presented the following resolution, which was quickly tabled:

Whereas the Constitution of the United States confers on Congress the power to establish a uniform rule of naturalization and is silent as to the exercises of any power over the subject of immigration; and Whereas it is declared in the Constitution that all power not delegated to the constitution nor prohibited to the states by it are reserved to the States respectively or to the people:

Therefore Resolved, that Congress has no power to pass any law regulating or controlling immigration into any of the States of Territories of the Union; but that the power to prescribe such rules and regulations touching this subject as may be deemed necessary to the safety and happiness of the people belongs to the States respectively or to the people, and that each State may determine for itself the evils resulting from the great influx of criminals and paupers and apply such remedy as their wisdom may suggest for their safety demand.

Again on March 4, 1856, Mr. Smith, of Alabama, introduced a bill to exclude foreign paupers and criminals. This bill required United States consuls to issue certificates to all persons intending to come to the United States, stating that they were not paupers, nor convicts, and that they were coming of their own accord and were not sent out of their own country by any society or authority whatsoever...17

The bill failed to pass. Meanwhile, the Committee on Foreign Affairs issued a report on Congressional concerns about European nations dumping undesirables in the United States. But, the committee “seemed to doubt the power of Congress to regulate the matter, so almost all their recommendations were to the States...”18 The lack of federal action on immigration matters led the Commission to conclude that it wasn’t until the 1860s that “the change of control of immigration from the various States to the National Government” began to take place.19

The Federalization of Immigration Policy: The 1870s and After

As with so much else following the Civil War, what had been long accepted to be state policy began to be federalized, and in 1872, President Grant sent a message to Congress claiming that when it came to immigration, “I see no subject more national in its character...”

Hirota concurs with this assessment of latter-day federalization, noting that:

The federalization of immigration control was therefore a gradual process at best, and the actions of officials in the northeastern states set the conditions for the introduction of general deportation by the federal government in 1891.

The nationalization of immigration regulation technically reached completion in 1891. Responding to the inefficiency of state-federal joint administration at [the New York immigration facility known as] Castle Garden revealed in legislative investigations, Congress passed a new immigration act in March 1891. The act placed issues of immigration under the control of the federal superintendent of immigration in the Treasury Department and appointed federal commissioners of immigration at major ports, replacing state enforcers with federal employees....The 1891 law also expanded the excludable category to cover people with mental defects and insanity, paupers and people “likely to become a public charge,” people with contagious diseases, people convicted of a felony of other crime involving “moral turpitude, polygamists, and assisted emigrants”—making all of them deportable.20

The 1891 act came at the end of a decade of growing federal action on immigration which included the Chinese Exclusion Act and more general legislation soon afterward. By the time this was taking place, however, many state governments, especially those in Massachusetts and New York were inviting more federal involvement in immigration control. Hirota continues:

Officials in both New York and Massachusetts fundamentally influenced the development of national immigration policy in the late nineteenth century by playing a central role in the making of the federal Immigration Act of 1882. Passed three months after the enactment of the federal Chinese Exclusion Act of 1882, which suspended the immigration of Chinese laborers, the Immigration Act was the first general legislation that applied to all foreigners at a national level and set the groundwork for subsequent federal immigration laws....Modeled on existing immigration policies in New York and Massachusetts, these provisions came from a draft bill that the two states’ officials created. In addition, the act left the enforcement of its provisions in the hands of the state officials.21

Here we see that even in the 1880s, federal immigration laws continued to rely on local enforcement, and state and federal officials were seen as partners in regulation of migrants.

It would not be until the twentieth century that the federal government would begin to claim sole legal authority over matters of immigration.

That most of this legislative history is today forgotten would be an understatement. This led Neuman in 1993 to refer to a “myth of open borders” in which it has been long assumed, even by the very learned, that borders in the United States were essentially open with few to no attempts by governments at any level to control the flow of migrants either into the United States, or across state borders.

Slack notes that even among those who are aware of this legislative history, there have still been attempts to claim that no deportations of any consequence took place. As the work of Hirota has shown, this was not the case.

Efforts to Increase Immigration

Immigration policy cut both ways, however. Although some states sought to limit immigration, many other states sought to augment population growth by further encouraging foreign immigration. Many frontier states adopted policies designed to attract migrants by offering an easy road to citizenship, and by adopting multiple “official” languages designed to accommodate a non-English speaking population. Indeed, pro-immigrant sentiment mid-century was sufficient enough for President John Tyler to publicly declare in 1841: “We hold out to the people of other countries an invitation to come and settle among us as members of our rapidly growing family, and for the blessings which we offer them we require of them to look upon our country as their country and unite with us in the great task of preserving our institutions and thereby perpetuating our liberties.”22

It must be understood, though, that by “people of other countries,” Tyler did not mean all those categories of paupers and other undesirables outlined in state statutes. He meant people other than the disabled, ill, impoverished, and criminally inclined. Indeed, while Emma Lazarus was penning her famous poem “The New Colossus” in 1883—which claimed the US welcomed the world’s “wretched refuse”—both the federal government and the states were at work enforcing legislation specifically designed to reject this alleged “refuse.”

This effort to exclude undesirables, however, illustrates a fundamental difference between nineteenth-century immigration legislation and modern legislation. As Neuman observed “[n]either Congress nor the states attempted to impose quantitative limits on immigration” (emphasis in the original).23

Legislation focused instead on refusing entry to those who were seen as likely to increase the government-assistance rolls or who might commit criminal acts. Creating arbitrary quotas for the total number of legal immigrants was a later innovation.

Declarant Alien Voting

For one final illustration of the degree to which states controlled immigration policy within their borders is the example of so-called “declarant alien voting.”

Although some states sought to expand regulations limiting immigration throughout much of the nineteenth century, numerous other state governments were extremely open to immigration, and immigrants. The drive to ease entry for immigrants was so widespread, that it led to situations in which new immigrants were able to obtain de facto citizenship with minimal fuss and paperwork by merely declaring an intent to become citizens.

Specifically, states that welcomed these “declarant” aliens as voters explicitly noted in their constitutions that non-US citizens were eligible to vote in elections if they declared their intent to become citizens within a certain time frame before the election. In the case of Colorado, for example, the state’s original 1876 constitution reads (Article VII section 1):

[The voter] shall be a citizen of the United States, or not being a citizen of the United States, he shall have declared his intention, according to law, to become such citizen, not less than four months before he offers to vote.24

There was nothing innovative about this position, however. This standard for voting rights was simply continuing what was the status quo in Colorado since declarant alien voting rights had already been established years before within the Kansas Territory, out of which Colorado was eventually formed.

Declarant alien voting in state constitutions goes back at least to the Wisconsin constitution of 1848. By the mid-nineteenth century, it had spread to numerous Western territories via Congressional approval. And, as Neuman notes:

Congress enfranchised declarant aliens in the [Oregon, Minnesota,] Washington, Kansas, Nebraska, Nevada, Dakota, Wyoming, and Oklahoma Territories. In all nine of these territories, Congress imposed the additional requirement of an oath to support the United States Constitution.

Some, though not all, of the territories that permitted alien suffrage retained it when they achieved statehood. Older states joined the trend. When Indiana and Michigan adopted new constitutions in the early 1850s, they enfranchised declarant aliens. Reportedly, the change reflected competition for immigrants among the Midwestern states. Numerous former Confederate states adopted the same tactic, at least temporarily, after the civil war.25

Declarant alien voting eventually died out in the 1920s as new immigrants from Eastern and Southern Europe were deemed insufficiently “white” and the anti-immigration policies became more popular for a variety of reasons. Anti-German hysteria during World War I, for example, was one cause.

In many states of the far west, however (such as Colorado) voting requirement had been very weak, even when there was a risk of non-whites voting. The 1876 Colorado constitution even stipulates that all new laws be published in English, Spanish, and German, so as to be intelligible to both Mexican-American and German-American immigrants.

Even Citizenship Became (Indirectly) a State Matter

Jamin Raskin, in “Legal Aliens, Local Citizens” finds that “white male aliens...exercised the right to vote in at least twenty-two states and territories during the nineteenth century.”26 In the nineteenth century, in a time of no income tax and few federal laws, citizenship was largely synonymous with voting rights.

Given the central role of state law in granting access to federal elections, states thus had the power to indirectly determine who could act as US citizens in terms of political participation:

As a chapter in the history of American federalism, the period of alien suffrage reflected a conception of states as sovereign political entities. The states with alien suffrage allowed non-US citizens to participate in voting at all levels of American government, thereby turning them, explicitly or implicitly, into “citizens” of the state itself. Participant states were thus exercising independence from the national government for the purposes of communal political self-definition.27

The emergence of voting policies peculiar to certain states grew naturally out of the fact that during the nineteenth century, there was a distinction between citizenship in a particular state, and citizenship in the United States overall. In her book on the 1818 Illinois state Constitution, Ann Lousin notes virtually all adult white men could vote in the state at the time, and, “as was typical in early state constitutions, there was no requirement of United States citizenship.”28 In fact, by the late nineteenth century, there arose a legal phenomenon of multi-level citizenship that did not assume that all state citizens were also US citizens.

In Neuman’s legal analysis, he finds that the state courts in several cases concluded that “alien voters were citizens of the state, though not of the United States.”29 Specifically, according to Neuman, the Wisconsin Supreme Court “described the independence of state citizenship from US citizenship as an acceptable consequence of the dual-sovereign system of federalism....A few other state courts similarly construed declarant alien voters as citizens of the state.”30  Essentially, the Wisconsin Supreme Court declared that “declarant aliens were citizens of Wisconsin” regardless of what the federal courts might say.

As voting was a central indicator of citizenship at the time, it should be noted that this followed logically from the fact that the states and not the central government were recognized as the proper instrument for regulating elections and voting rights. After all, in the text of the US constitution (ignoring later case law) it is clear that the states decide who is eligible to vote, and not the federal government. In fact, the federal constitution rarely mentions voting at all. According to Joshua Douglas, “unlike virtually every state constitution, the US constitution does not actually confer the right to vote on anyone.”31 There are only negative mandates as to who may not be disenfranchised. Even the US Supreme court admits this, and in 2013, the court’s majority wrote: “Congress...regulate[s] how federal elections are held, but not who may vote in them. The latter is the province of the States.”32

In state constitutions, voting and voting eligibility is a central topic, and this is a relic of nineteenth-century decentralist attitudes in which voting rights and thus citizenship (practically speaking) were well within the realm of the state legislatures.

Douglas goes on to note that frequent claims by federal courts that voting rights are “fundamental” to federal law cite no actual text in the US constitution, but appear to be based on nebulous philosophical claims. Only the state constitutions treat voting rights as fundamental. Historically, and in practical application, it has often been states and state constitutions that decide who can and who cannot exercise the prerogatives of a full citizen.

As with abortion, immigration policy in the United States has been federalized, in spite of immigration policy long being regarded as outside the prerogatives of federal policymakers. And, as with abortion, the federalization of immigration policy has led to a heightening of the political stakes of national elections, while also increasing tensions between blocs of voters from different states and regions who hold increasingly divergent views.

• 1Gerald L. Neuman, “The Lost Century of American Immigration Law (1776–1875),” Columbia Law Review 93, no. 8 (December 1993): 1833–1901.
• 2Ibid., p. 1848.
• 3Ibid., p. 1847.
• 4Hidetaka Hirota, Expelling the Poor: Atlantic Seaboard States and the Nineteenth-Century Origins of American Immigration Policy (Oxford, U.K.: Oxford University Press, 2017), p. 2.
• 5Ibid., p. 3.
• 6Michael A. Schoeppner, Moral Contagion: Black Atlantic Sailors, Citizenship, and Diplomacy in Antebellum America (Cambridge, Mass.: Cambridge University Press, 2019), p. 106.
• 7New York v. Miln, 36 U.S. 11 Pet. 102 102 (1837), https://supreme.justia.com/cases/federal/us/36/102/.
• 8Smith v. Turner; Norris v. Boston, 48 U.S. (7 How.) 283 (1849).
• 9Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (Princeton, N.J.: Princeton University Press, 1996), p. 46.
• 10Neuman, “The Lost Century of American Immigration Law (1776–1875),” p. 1889.
• 11Some originalists have claimed that the passage of the Alien and Sedition Acts proves that the federal government has Constitutional authority over immigration. The Jeffersonians, of course, disagreed vehemently. The loss of the Federalists to the Republicans in 1800 essentially destroyed the pro-federal, anti-immigration position for decades, during which time federal immigration control was associated with the overreach of the Federalist Party, and contrary to the more strict Constitutional views of the Jeffersonians.
• 12Schoeppner, Moral Contagion.
• 13Michelle R. Slack, “Ignoring the Lessons of History: How the ‘Open Borders’ Myth Led to Repeated Patterns in State and Local Immigration Control,” Journal of Civil Rights and Economic Development 27, no. 3 (Winter 2014): 474.
• 14Neuman, Strangers to the Constitution, p. 35.
• 15Ibid., p. 35.
• 16Although claiming to favor “states’ rights,” slave masters demanded greater federal action on the matter of fugitive slaves. Significantly, when South Carolina seceded from the Union, it cited insufficient federal action on the matter of returning fugitive slaves to bondage.
• 17William P. Dillingham, “Reports of the Immigration Commission: Immigration Legislation, Document No. 758,” December 5, 1910 (Washington, D.C.: Government Printing Office, 1911), p. 15.
• 18Ibid., p. 16.
• 19Ibid., p. 566.
• 20Hirota, Expelling the Poor, p. 201.
• 21Ibid., p. 5.
• 22Jonathan French, ed., The True Republican (Philadelphia, Penn.: James L. Gihon, 1854.), p. 249.
• 23Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (Princeton, N.J.: Princeton University Press, 1996), p. 19.
• 24“The Constitution of the State of Colorado, Adopted in Convention, March 14, 1876” (Denver: Tribune Book and Job Printing House, 1876), p. 24, https://www.colorado.gov/pacific/sites/default/files/Colorado%20Constitution.pdf.
• 25Neuman, Strangers to the Constitution, p. 66.
• 26Jamin B. Raskin, “Legal Aliens, Local Citizens: The Historical Constitutional and Theoretical Meanings of Alien Suffrage,” University of Pennsylvania Law Review 141, no. 4 (April 1993): 1397, https://digitalcommons.wcl.american.edu/facsch_lawrev/1044.
• 27Ibid., pp. 1397–98.
• 28Ann Lousin, The Illinois State Constitution (Oxford, U.K.: Oxford University Press, 2009), p. 5.
• 29Neuman, Strangers to the Constitution, p. 67.
• 30Ibid., p. 68.
• 31Joshua A. Douglas, “The Right to Vote Under State Constitutions,” Vanderbilt Law Review 67, no. 1 (January 2014): 93.
• 32Arizona, et al v. Inter Tribal Council of Arizona, Inc., et al., 677 F. 3d 383 (2013).