I asked this question of a Constitutional scholar (not one of our instructors) and received the answer cited below. Can any instructor comment on this? The scholar will remain anonymous.
My question:
Can you help me out by citing a specific example of the framers and or ratifiers ceding the power of immigration and control of state borders in the Constitution.
My research, much more limited than yours, has led me to the conclusion the framers and ratifiers thought this clause had to do with harm coming to foreign dignitaries on US soil. I have not seen one mention of immigration. I know of Emer de Vattel’s “The Law of Nations” but find no reference to it in the federal convention or ratification debates.
If there are no cites, does a general knowledge of the theme of The Law of Nations specifically cede immigration and border control from the states to the federal government?
Answer:
Immigration is, as you suggest, more difficult — and as I explain in my post on the subject. However, both of the standard works on the law of nations at the time — Vattel and Grotius — treat controls on emigration and immigration as a branch of the law of nations. When a legal term like “law of nations” is inserted in a legal document by a bunch of lawyers and approved by a very legally-literate public, it has to be presumed that they were using the term as understood by the law. That’s also the best way to explain the “migration” wording of Article I, Section 9.
Vattel was not cited as often as some others in the constitutional debates, but he did appear from time to time: For example, Luther Martin mentioned him several times at the Federal Convention — see Farrand, vol. 1, pp. 437, 437, 441 and 442.
Finally: It would not be expected that Congress would limit immigration in the early years, when they were energetically trying to attract people to America. But that doesn’t mean the power wasn’t included. Congress has never passed a comprehensive act dealing with promissory notes and other commercial paper (leaving that regulation mostly to the states), but no one doubts its authority to do so.
Important point: I also believe the states retained concurrent, although subordinate, power to regulate immigration. The Federal power is not exclusive.
.
