The Case for an “Immigration Freedom Amendment”

Statue of Liberty


Recent research has shown that Boston GlobeSymposium on Editing the Constitution, prominent conservative columnist Jeff Jacoby argues for constitutional amendment that imposes severe limitations on the government’s power to exclude immigrants.

Constitution Framers gave no power to the federal government to limit peaceful immigration. Most foreigners who wanted to enter the United States legally were free to do so for the first 100 years of American history. Although the Constitution delegated many power to the federal government in specific instances, it does not include a right to ban or expel immigrant.

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.”

Only in 1882 did there exist a federal law that restricted immigration. It was the controversially racist Chinese Exclusion Act. This act effectively closed the doors to immigration from China. The Supreme Court took the initiative to uphold the law, instead of declaring it unconstitutional. It argued that any right to exclude foreigners was an “incident or sovereignty of the United States government.” 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 finally discredited. However, the belief that the government holds all power in immigration matters has been accepted as a fact. The courts today accept virtually all restrictions on immigration. These include those that are based upon national origin, religion, politics, or family connection; as well as those that are based solely on numerical quotas.

An amendment is necessary to add to the Constitution to reinstate the right to immigrate as intended by our Founding Fathers.

The United States and any other State shall not restrict immigration to nations with whom the United States does not have a war.

Ilya Somin is a George Mason University law professor and author of “Free to Move. Foot Voting. Migration. and Political Freedom.” Under this amendment, federal immigration restrictions would become unconstitutional. It’s similar to laws that prohibit discrimination by race and silence political speech. If there is an imminent threat to the public safety, national health, or security of any foreigner, this presumption may be overcome. 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.

Jacoby acknowledges that Jacoby’s proposed amendment is modified from one I originally developed for him. New York TimesSymposium on Constitutional Amendments, August. The TimesThe editors wanted to cut down on the amount of submissions at their symposium. Mine was among those who were eliminated.

It was also my idea to apply the strict scrutiny test to immigration restrictions. This is used to examine restrictions regarding racial or ethnic discrimination. It would allow courts to accept restrictions only in very limited cases, and invalidate most restrictions that do not pass this test.

Jacoby’s proposal differs from my original. Jacoby’s plan restricts the federal ability to block migrants, as well as that of states. The original intent of the law was to limit federal control over immigration. However, states were able and often did allow migrants from various backgrounds, often on grounds of racial or ethnic prejudices. This included immigrants from Ireland.

Jacoby’s amendment, despite its deviation from the Constitution, is superior to mine. I endorse this version. States should not be able to exempt people from their country of origin, as the federal government does. States, like the federal government have many options to deal with potential negative effects of migration. These include “keyhole solutions”, which are more beneficial to natives and immigrants than exclusion.

Second, mine contained the following section. It follows immediately after Jacoby’s.

Section 2: Constitutional Rights and Immigration Laws

Regulations restricting immigration are completely subject to all Constitution rights, privileges or immunities which limit the United States’ authority.

This would remove the dangerous – and on originalist grounds unjustified- double standard by which the Supreme Court has exempted a large number of immigration restrictions from both the Bill of Rights (and other constitutional limitations that limit almost every exercise of government power) and other provisions.

Jacoby has a column on this topic, but doesn’t have a section specifically addressing the issue. However, Section 2 will be less relevant if immigration restrictions all are under strict scrutiny. However, it would not have been applicable in those cases when strict scrutiny applies to the government but constitutional rights place even more restrictions on the government.

I believe neither Jacoby nor I think this amendment is likely to be passed in the near future. This idea does not have the immediate purpose of promoting political action. It is meant to advance public discussion about immigration.

Jacoby discusses in his column why Jacoby believes it is a good idea to return to the more liberal approach to immigration that was adopted during the Founding era.

It would not signify that America’s boundaries are no more important or be equivalent to surrendering its 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….

This amendment would benefit everyone. It would benefit the entire country. American history’s greatest growth driver is immigration. Increased immigration means greater economic growth, innovation and cultural enrichment. Contrary to what nativists believe, immigrants can be beneficial. MoreLaw-abiding residents are better than those born in the USA. They quickly learn English and become proficient at it.

“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.” This was the correct policy in a small, weak United States. This policy is still the best for a country that has become the most powerful superpower in history. The immigration freedom amendment will restore the vision and open the door for all Americans who are interested in becoming Americans.

In my book, I discuss many of these moral and policy questions in more detail.You are free to moveAlso, in many other writings such as this.