In a recent message on the Originalism blog, the jurist Rob Natelson criticizes me for relying on James Madison’s article 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 argues that the report has little relevance to the original meaning of the Constitution and does not really address the issue of immigration restriction, anyway. In this post, I continue the discussion by responding to Natelson. I think he is wrong on both counts.
Natelson’s post is the latest contribution to an ongoing debate that began with my post criticizing conservative arguments that illegal immigration is considered “invasion” under relevant provisions of the Constitution, and thus empowers governments federal and state governments to use military force to prevent it. . Andrew Hyman, one of those I criticized in this post, responded to me in a post I posted (with his permission) here on the VC blog. I posted a reply in this same message. In both of my posts, I pointed to the passage in the 1800 report where Madison denies that immigration was characterized as an “invasion” and therefore denies that the Aliens Acts of 1798 (and the federal restrictions on immigration in general) were authorized by the invasion provisions of the Constitution.
While my exchange with Hyman focused primarily on the issue of “invasion”, Natelson broadens the scope by considering the more general relevance of the 1800 report. He argues that the report has little relevance to modern debates on the federal immigration power because “it was aimed primarily at deportation, and a closer reading of this passage shows that Madison was speaking only of deportation, not of immigration per se.” I have already touched on this point in detail in my rejoinder to Hyman, where I pointed out that the Alien Friends Act of 1798 (which Madison, in the report, said was unconstitutional in its entirety) actually went far beyond the mere authority of ‘expulsion.
The same answer applies to Natelson’s assertion that Madison’s argument only applies to aliens who have entered the United States legally. The whole point of Madison’s position is that the federal government had no power to bar the entry of foreigners from countries not at war with the United States. Natelson may be correct in suggesting that Madison’s position would still allow the United States to bar individuals engaged in armed hostilities against the United States, even if they were citizens of countries whose governments were not at war with the US government. But simply crossing a border in violation of a US law does not constitute one, especially if that law was a federal law that Madison initially denied was constitutional. I have covered these issues in detail in my previous posts dealing with the “invasion” issue and Hyman’s arguments.
Hyman also makes a more general argument against relying on the report to shed light on the original text and 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 in showing understanding of the era of ratification. Here is some:
* Memories fade.
* Participants in the Ratification era who might have contradicted these statements were often not there to do so: when the 1800 report was published, prominent participants in constitutional debates such as Benjamin Franklin, Patrick Henry , George Mason, Roger Sherman, Melancton Smith and George Washington were all dead. John Rutledge was still alive, but suffered from mental illness. Rufus King was overseas. And so on.
* Incentives change. The same person who, when the Constitution was presented to the public in 1788, was urged to characterize the powers of the federal government one way, has often been urged to characterize them differently thereafter. By way of illustration, there is a great difference between the constitutional arguments of Alexander Hamilton in Federalist No. 16 (before ratification) and in his Report on Manufactures (after ratification).
* Covenants change. In particular, they changed dramatically after the first session of the First Federal Congress, as Madison’s case illustrates: Before that time he was allied with Hamilton. After this period, he allied himself with Thomas Jefferson.
* Change of context and language.
Using Madison’s 1800 report to show the Ratifiers’ understanding a decade earlier is subject to all of these objections.
If this is correct, it invalidates not only the use of the 1800 report to shed light on constitutional meaning, but the use of any post-ratification material. Thus, judges, historians, jurists and others are wrong to rely on the debates of the 1790s over the Bank of the United States, the assumption of state debts, the use of the powers of foreign affairs in American relations with Great Britain and France, and many others. . So is the extensive judicial and scholarly reliance on Reconstruction-era evidence to shed light on the meaning of the Thirteenth, Fourteenth, and Fifteenth Amendments. A high percentage of what we know (or at least think we know) about the original meaning of the Constitution should be discarded.
Some of Natelson’s concerns here are reasonable. For example, it is true that memories fade and politicians may change positions opportunistically in response to new circumstances and political alliances. But I don’t think that advises total or near-total rejection of post-ratification material. The latter is simply too valuable to be dismissed entirely. In many situations, including this one, it provides ample evidence of the understanding of constitutional significance by the very people who drafted and ratified the provisions in question, often even addressing issues similar to those that drove 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 editors and ratifiers had died in 1800, the audience to whom he wrote the Report of 1800 for included a large number of people who remembered the framing and ratification well and who might object if they thought Madison was wrong.
Instead of a massive rejection, we should, on a case-by-case basis, consider whether any given post-ratification statement, whether by Madison or anyone else, is likely to be the product of later political changes or No. In this case, the answer is probably no. Madison’s denial that the federal government had the power to exclude “foreign friends” is entirely consistent with the positions he took during the ratification debates, such as its rejection, Federalist 42, of allegations that the Migration or Importation Clause of the Constitution (which prevented Congress from prohibiting the “migration or importation of such persons as any of the existing States shall think fit to admit” until in 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 general power to exclude migrants at any time, 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 allies in seeking ratification of the Constitution, Madison and Jefferson were also close political allies in the 1780s. and still had much more in common. on the constitutional and political issues either had with Hamilton. Regardless, Madison never endorsed the constitutionality of federal restrictions on the migration of “foreign friends” and his stance on this issue is a natural consequence of his generally narrow interpretation of federal power from the ratification debates. .
Much more can be said about these issues. Among other things, the justification for the “invasion” of immigration restrictions is only one of many advances advanced to justify federal power over immigration. I discussed many others here, and am working on a much more in-depth academic treatment of these issues. In this exchange with Hyman and Natelson, I only hope to explain why the invasion theory is wrong, and why Madison’s theory Report both supports this position and is a relevant and valuable source of evidence.
I thank Natelson and Hyman for their thoughtful contributions to this debate and for pushing me to elaborate further on some of the issues at stake.