The Founders’ Immigration Policy

Today is the anniversary of the passage of America’s first immigration and naturalization law, the Naturalization Act of 1790. Passed in the first Congress, it had zero restrictions on immigration. You read that right, the first immigration law passed in the United States, by the Founders themselves, supported open immigration.

The Naturalization Act created few requirements for naturalization. Eligible persons had to reside here for two years, have a good moral character (that is, not be a criminal), and be a free white person. That last provision shamefully excluded indentured servants, slaves, and former slaves. But there were no restrictions on who could come here and work for the American dream.

The government began keeping records of immigrants only in 1820. The post-Civil War 14th Amendment to the Constitution granted citizenship to freed slaves and their descendants. At the time it was also recognized to extend citizenship to all children of non-naturalized immigrants, regardless of race, because all immigrants, including unauthorized ones, are “subject to the jurisdiction” of the United States.

The first federal restrictive immigration law was the Page Act in 1875. It sought to eliminate the immigration of undesirables coming as contracted labor, prostitutes, and all people considered to be convicts in their country of origin. That law was strengthened by the Chinese Exclusion Act, signed into law in 1882.

In 1898, the Supreme Court ruled, in the United States v. Wong Kim Ark, that children of immigrants, including non-whites, are to be granted birthright citizenship. Yet even after that ruling, Congress enacted more restrictions on Japanese immigrants, “undesirables,” and the illiterate.

During the late 19th and early 20th century, a new mass wave of migration began. Attracted by American prosperity, millions of Jews, Italians, Poles, Russians, Greeks, Japanese, and others joined the traditional cohorts of English, Irish, German, and Nordic immigrants. On the eve of World War I, annual immigration to the U.S. was over 1.2 million. After the war, immigration resumed and almost reached 1 million a year when Congress closed the door.

Progressives, eugenicists, anti-Catholics, prohibitionists, and labor unionists pushed for the Emergency Quota Act of 1921, which imposed numerical limits on immigration for the first time. Under that law, the annual number of immigrants from a given nationality was limited to no more than 3 percent of the U.S. population, as per the 1910 census. The Johnson-Reed Act of 1924 lowered the immigrant quota further and shifted it even more toward favoring those from Western Europe. Family reunification and other now-familiar provisions were also enacted.

Unauthorized immigration took off after the Quota Act. Before, only small numbers of people were unauthorized, shamefully the Chinese but also “undesirables” like prostitutes, those harboring violent political ideologies, and those with deadly diseases. After 1921 many peaceful people who just wanted to live and work in America couldn’t, so they broke the law.

Beginning in World War II, the Bracero Program provided hundreds of thousands of temporary worker visas for low-skilled Mexican farm workers. When that program was ended in 1965, the economic incentive to seek a job from a willing American farmer without government authorization overrode the incentive to obey the law. Since then, the few work visas of limited issuance that exist today are inadequate to provide a viable legal alternative to unauthorized immigration.

The vestiges of the lousy quota system, mountains of regulations detailing the specifics of work visas, restrictions on changing firms, E-Verify, and unimaginably silly regulations make the American immigration system a big-government mess alien to the philosophy of the Founders.

Among their complaints against King George III, written in the Declaration of Independence, was that, “He has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migration hither” It applies just as well to our government today.

To truly reform immigration, we should look back to the nation’s first immigration and naturalization laws, which are a far cry from restrictive laws like Arizona’s SB 1070 and Alabama’s HB 56.

Combining the Founder’s openness for immigration with the 14th Amendment race-neutral grant of birth-right citizenship–with proper checks for criminals, terrorists, and the seriously ill–would legalize almost all immigration, hearken back to our traditions of individual liberty, and confer vast wealth on Americans as millions of consumers, entrepreneurs, workers, and inventors come to our shores. It is the right thing to do.