See, I always thought it gave Congress the exclusive power to define uniform rules of naturalization. Not so says Justice Scalia in his dissent in Arizona v. United States. And how does he get there–the Privileges and Immunities Clause. No not that one, the one in Article IV–and the one in the Articles of Confederation. I’ve never seen this argument before.
There is no doubt that “before the adoption of the consti tution of the United States” each State had the author- ity to “prevent [itself] from being burdened by an influx of persons.” Mayor of New York v. Miln, 11 Pet. 102, 132– 133 (1837). And the Constitution did not strip the States of that authority. To the contrary, two of the Constitu tion’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.” Letter from James Madison to Edmund Randolph (Aug. 27, 1782), in 1 The Writings of James Madison 226 (1900); accord, The Federalist No. 42, pp. 269–271 (C. Rossiter ed. 1961) (J. Madison). The Articles of Confederation had provided that “the free inhabitants of each of these States, paupers, vagabonds and fugitives from jus tice excepted, shall be entitled to all privileges and im munities of free citizens in the several States.” Articles of Confederation, Art. IV. This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another. To remedy this, the Constitution’s Privileges and Immunities Clause provided that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Art. IV, §2, cl. 1 (emphasis added). But if one State had particularly lax citizenship standards, it might still serve as a gateway for the entry of “obnoxious aliens” into other States. This problem was solved “by authorizing the general government to establish a uniform rule of naturalization throughout the United States.” The Federalist No. 42, supra, at 271; see Art. I, §8, cl. 4. In other words, the naturalization power was given to Con gress not to abrogate States’ power to exclude those they did not want, but to vindicate it.
Scalia’s arguments cite all original sources, which tells me that (likely) this is an argument he (or his clerks) hatched up. They may be in Amici or law review articles. I don’t know.
Scalia also cites the first naturalization act passed (which I cited in my work on Original Citizenship), but notes that the Feds did not regulate “immigration” (contradistinguished from naturalization) until 100 years after the Founding:
One would conclude from the foregoing that after the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigra tion, but no doubt about the power of the States to do so. Since the founding era (though not immediately), doubt about the Federal Government’s power has disappeared. Indeed, primary responsibility for immigration policy has shifted from the States to the Federal Government. Con gress exercised its power “[t]o establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4, very early on, see An Act to establish an uniform Rule of Naturalization, 1 Stat. 103. But with the fleeting exception of the Alien Act, Congress did not enact any legislation regulating immi gration for the better part of a century.
Totally aside, this may provide some fodder to my thoughts about the origins of exclusive federal jurisdiction.
Nino also cites the Virginia and Kentucky Resolutions as proof that the federal government was never delegated (and by extension the states never ceded) the power to regulate immigration (in opposition to the Alien and Sedition Acts).
The Kentucky and Virginia Resolutions, written in denun ciation of these Acts, insisted that the power to exclude unwanted aliens rested solely in the States. Jefferson’s Kentucky Resolutions insisted “that alien friends are under the jurisdiction and protection of the laws of the state wherein they are [and] that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citi zens.” Kentucky Resolutions of 1798, reprinted in J. Powell, Languages of Power: A Sourcebook of Early American Constitutional History 131 (1991). Madison’s Virginia Resolutions likewise contended that the Alien Act pur ported to give the President “a power nowhere delegated to the federal government.” Virginia Resolutions of 1798, reprinted in Powell, supra, at 134 (emphasis omitted). Notably, moreover, the Federalist proponents of the Act defended it primarily on the ground that “[t]he removal of aliens is the usual preliminary of hostility” and could therefore be justified in exercise of the Federal Govern ment’s war powers. Massachussets Resolutions in Reply to Virginia, reprinted in Powell, supra, at 136.
Um. These were authored anonymously by Madison and Jefferson, and were widely rejected and denounced. Though they are darlings of the Tea Party, so fitting in this dissent.