Immigration and the Migration or Importation Clause of the Constitution

Did the Constitution originally delegate a power over immigration to Congress?

In response to a video pointing out that immigration and naturalization are two distinct powers under the Constitution, the latter being a power expressly delegated to the federal government and the former not, a commenter suggested the original text of the document did cover immigration.

If you’re referring to Article I, Section 9, Clause 1 of the constitution which reads

“The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.”

There was an expiration date written into the prohibition meaning as of 1808, congress has the authority to supersede the states in regards to immigration.

While not a common analysis of the text, it’s not rare by any means. However,  the clause was referring to slaves. Not general immigration.

Here’s how John Jay – coauthor of the Federalist Papers and first Supreme Court Justice described it:

It will, I presume, be admitted that slaves were the persons intended. The word slaves was avoided, probably on account of the existing toleration of slavery and of its discordance with the principles of the Revolution, and from a consciousness of its being repugnant to the following positions in the Declaration of Independence, viz.: ‘We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them are life, liberty, and the pursuit of happiness.’”

James Madison noted that it was worded that way due to

“scruples against admitting the term ‘slaves’ into the Instrument. Hence the descriptive phrase ‘migration or importation of persons;’ the term migration allowing those who were scrupulous of acknowledging expressly a property in human beings, to view imported persons as a species of emigrants, while others might apply the same term to foreign malefactors sent or coming into the country.”

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