James Madison on the Unconstitutionality of Immigration Laws

Does the Constitution give the federal government the power to banish foreigners?

JAMES MADISON ON THE UNCONSTITUTIONALITY OF IMMIGRATION LAWS
James Madison

One of the more well-​known founding fathers, James Madison was the primary author of the U.S. Constitution, the author of the Bill of Rights, and our fourth president. Along with Alexander Hamilton and John Jay, Madison wrote the Federalist Papers, and, in collaboration with Thomas Jefferson, organized the Republican, now known as the Democratic-​Republican, Party.

Editor’s Note
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Andy Craig

Staff Writer, Cato Institute

The controversy over the Alien and Sedition Acts looms large in early American constitutional history. Not even a decade after the ratification of the First Amendment, Congress passed, and President John Adams signed a law prohibiting “false, scandalous and malicious writing” against the president or Congress. Political critics of the ruling party soon found themselves imprisoned under the new law.

The Alien and Sedition Acts were passed in the context of sharply rising partisan tension between the Federalists, the party of Alexander Hamilton, and the Democratic-​Republicans, led by Thomas Jefferson. One point of contention was foreign policy towards revolutionary France, as the United States became embroiled in the Quasi-​War and French and American ships engaged in open hostilities in the North Atlantic. The Republicans (as they were more often known at the time) took a much friendlier view towards the new regime in Paris, seeing it as akin to their revolution. The Federalists were much more skeptical and pursued a foreign policy more aligned with Great Britain. Among their other disputes, the parties largely split along the lines of Anglophiles versus Francophiles.

Less remembered than the infamous Sedition Act, the “alien” part of the Alien and Sedition Acts referred to three laws aimed at foreign nationals. Like the Sedition Act, they came with a decidedly partisan motive as Federalists sought to suppress support for their Republican opponents. Immigrants and foreign visitors to the United States tended to favor the Republicans, and actively supported the Jeffersonian cause as well as agitating on behalf of France.

The Naturalization Act, under Congress’s Article I, Section 8 power to “establish an uniform Rule of Naturalization,” raised the residency period required prior to obtaining US citizenship from five years to fourteen, seeking to cut off the supply of new Republican voters who predominated among recent immigrants. The Alien Enemies Act authorized the president to detain or expel citizens from nations with which the United States was at war. It was the third act that became a flashpoint of contention, the Alien Friends Act (sometimes referred to simply as the Alien Act). This law established the first general controls on the entry and presence of foreign nationals in the United States, authorizing the president to expel any foreigner he saw fit. It also required ships arriving in American ports to provide a list of all foreign nationals, a predecessor of what would become America’s sprawling modern system of immigration controls.

The Alien and Sedition Acts were the targets of twin resolutions written by Thomas Jefferson and his protégé and fellow Virginian James Madison. The Virginia and Kentucky Resolutions adopted by their respective state legislatures in 1798 became cornerstones of American constitutional debate both for their robust defense of the First Amendment and their strict constructionist view of the federal government’s enumerated powers under the Constitution. The Kentucky resolution, authored by Jefferson, took a radical view of federalism, claiming the right of states to nullify federal laws they believed to be unconstitutional and to interpose themselves to block enforcement. In Virginia, Madison took a more moderate view, seeing the purpose of the resolutions as more of a protest and call to action for other states, urging both political and judicial opposition to the Acts. The resolutions are most remembered for the debate over nullification and the so-​called compact theory of the Union, being invoked from the Nullification Crisis of 1832 through to the Civil War and the battles over civil rights in the 20th century.

In 1800, Madison delivered a follow-​up report to Virginia legislators to reiterate and expound on the 1798 resolution while responding to Federalist criticisms. The Report of 1800, as it came to be known, was a point-​by-​point defense of the Republican position. It is a particularly remarkable and underappreciated document for what it has to say about the Alien Friends Act. Madison, the primary architect of the Constitution, offers a sweeping denunciation of the constitutionality of federal power over immigration and “friendly aliens,” that is, foreigners of nations the United States is not at war with.

In Madison’s view, the Constitution grants no such enumerated power to Congress at all. Furthermore, several aspects such as the lack of jury trials and due process conflict with basic American legal principles. His complaints are especially relevant today, with a border closed to most people alongside a Kafkaesque immigration bureaucracy to enforce this prohibition and dole out limited exceptions. If Madison’s position is a compelling originalist and textualist interpretation of the Constitution, the ramifications for America’s immigration law today would be radical. Simply put, almost all of it would be unconstitutional.

However, the Supreme Court has not agreed with Madison. Instead, it has created a doctrine that immigration control is a “plenary power” of the federal government implied by the Constitution even if not explicitly stated. Federal law has become increasingly restrictive, starting with the Chinese Exclusion Act of 1882. Today, entry by foreign nationals into the country is presumptively banned unless one of a narrow range of exceptions applies. America’s airports, seaports, and land borders are rife with checkpoints and controls, with even the Fourth Amendment’s privacy protections suspended by judicial fiat within 100 miles of land and sea borders.

To highlight Madison’s views on this important question and make the relevant section easily available, the text of the Report of 1800 concerning the Alien Friends Act follows. Spelling and grammar are preserved as in the original. The author argues first that there is no enumerated power in the Constitution concerning friendly and peaceful foreign nationals. Rather, there are only limited powers over foreign nationals that are incidental to other enumerated powers, such as over enemy aliens pursuant to the power to declare war. He argues against the position that non-​citizens are not entitled to the protections of individual rights in the Constitution and laws of the United States. He claims furthermore that deportation is an inherently punitive punishment, requiring due process adjudication on par with criminal trials, in which some particular crime beyond mere presence in the United States must be alleged. He notes that by vesting the power to banish in the executive alone, the process created by the Alien Friends Act also violates the separation of powers and infringes on the role of the independent judiciary.

All of these complaints apply to contemporary American immigration law. Deportations are by legal fiction treated as administrative actions rather than punishments, immigration decisions are adjudicated primarily within the executive branch rather than through Article III courts, and the whole edifice of immigration law is, in effect, a special Constitution-​free zone where normal limits on government power do not apply. Thanks to the Report of 1800, we know James Madison, one of the leading Framers of the Constitution, would be appalled.

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The subject divides itself into first, “The Alien Act,” secondly, “The Sedition Act.”

Of the “Alien act,” it is affirmed by the resolution, 1st. That it exercises a power no where delegated to the federal government. 2d. That it unites legislative and judicial powers to those of the executive. 3d. That this union of power, subverts the general principles of free government. 4th. That it subverts the particular organization and positive provisions of the federal constitution.

In order to clear the way for a correct view of the first position, several observations will be premised.

In the first place; it is to be borne in mind, that it being a characteristic feature of the Federal constitution, as it was originally ratified, and an amendment thereto having precisely declared, “That the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”; it is incumbent in this, as in every other exercise of power by the federal government, to prove from the constitution, that it grants the particular power exercised.

The next observation to be made, is, that much confusion and fallacy, have been thrown into the question, by blending the two cases of aliens, members of a hostile nation; and aliens, members of friendly nations. These two cases are so obviously, and so essentially distinct, that it occasions no little surprise that the distinction should have been disregarded: and the surprise is so much the greater, as it appears that the two cases are actually distinguished by two separate acts of Congress, passed at the same session, and comprised in the same publication; the one providing for the case of “alien enemies”; the other “concerning aliens” indiscriminately; and consequently extending to aliens of every nation in peace and amity with the United States.

With respect to alien enemies, no doubt has been intimated as to the federal authority over them; the constitution having expressly delegated to Congress the power to declare war against any nation, and of course to treat it and all its members as enemies. With respect to aliens, who are not enemies, but members of nations in peace and amity with the United States, the power assumed by the act of Congress, is denied to be constitutional; and it is accordingly against this act, that the protest of the General Assembly is expressly and exclusively directed.

A third observation is, that were it admitted as is contended, that the “act concerning aliens,” has for its object, not a penal, but a preventive justice; it would still remain to be proved that it comes within the constitutional power of the federal legislature, and if within its power, that the legislature has exercised it in a constitutional manner.

In the administration of preventive justice, the following principles have been held sacred; that some probable ground of suspicion be exhibited before some judicial authority; that it be supported by oath or affirmation; that the party may avoid being thrown into confinement, by finding pledges or sureties for his legal conduct sufficient in the judgment of some judicial authority; that he may have the benefit of a writ of habeas corpus, and thus obtain his release, if wrongfully confined; and that he may at any time be discharged from his recognizance, or his confinement, and restored to his former liberty and rights, on the order of the proper judicial authority; if it shall see sufficient cause.

All these principles of the only preventive justice known to American jurisprudence, are violated by the alien act. The ground of suspicion is to be judged of, not by any judicial authority, but by the executive magistrate alone; no oath or affirmation is required; if the suspicion be held reasonable by the President, he may order the suspected alien to depart the territory of the United States, without the opportunity of avoiding the sentence, by finding pledges for his future good conduct; as the President may limit the time of departure as he pleases, the benefit of the writ of habeas corpus, may be suspended with respect to the party, although the constitution ordains, that it shall not be suspended, unless when the public safety may require it in case of rebellion or invasion, neither of which existed at the passage of the act: And the party being, under the sentence of the President, either removed from the United States, or being punished by imprisonment, or disqualification ever to become a citizen on conviction of not obeying the order of removal, he cannot be discharged from the proceedings against him, and restored to the benefits of his former situation, although the highest judicial authority should see the most sufficient cause for it.

But, in the last place, it can never be admitted, that the removal of aliens, authorised by the act, is to be considered, not as punishment for an offence; but as a measure of precaution and prevention. If the banishment of an alien from a country into which he has been invited, as the asylum most auspicious to his happiness; a country, where he may have formed the most tender of connections, where he may have vested his entire property, and acquired property of the real and permanent, as well as the moveable and temporary kind; where he enjoys under the laws, a greater share of the blessings of personal security and personal liberty, than he can elsewhere hope for, and where he may have nearly compleated his probationary title to citizenship; if moreover, in the execution of the sentence against him, he is to be exposed, not only to the ordinary dangers of the sea, but to the peculiar casualties incident to a crisis of war, and of unusual licentiousness on that element, and possibly to vindictive purposes which his emigration itself may have provoked; if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied. And if it be a punishment, it will remain to be enquired, whether it can be constitutionally inflicted, on mere suspicion, by the single will of the executive magistrate, on persons convicted of no personal offence against the laws of the land, nor involved in any offence against the law of nations, charged on the foreign state of which they are members.

One argument offered in justification of this power exercised over aliens, is, that the admission of them into the country being of favor not of right, the favor is at all times revokable.

To this argument it might be answered, that allowing the truth of the inference, it would be no proof of what is required. A question would still occur, whether the constitution had vested the discretionary power of admitting aliens in the federal government or in the state governments.

But it can not be a true inference, that because the admission of an alien is a favor, the favor may be revoked at pleasure. A grant of land to an individual, may be of favor not of right; but the moment the grant is made, the favor becomes a right, and must be forfeited before it can be taken away. To pardon a malefactor may be a favor, but the pardon is not, on that account, the less irrevocable. To admit an alien to naturalization, is as much a favor, as to admit him to reside in the country; yet it cannot be pretended, that a person naturalized can be deprived of the benefit, any more than a native citizen can be disfranchised.

Again it is said, that aliens not being parties to the constitution, the rights and privileges which it secures, cannot be at all claimed by them.

To this reasoning also, it might be answered, that although aliens are not parties to the constitution, it does not follow that the constitution has vested in Congress an absolute power over them. The parties to the constitution may have granted, or retained, or modified the power over aliens, without regard to that particular consideration.

But a more direct reply is, that it does not follow, because aliens are not parties to the constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws, than they are parties to the constitution; yet it will not be disputed, that as they owe on one hand, a temporary obedience, they are entitled in return, to their protection and advantage.

If aliens had no rights under the constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one half may be also aliens.

It is said, further, that by the law and practice of nations, aliens may be removed at discretion, for offences against the law of nations; that Congress are authorised to define and punish such offences; and that to be dangerous to the peace of society is, in aliens, one of those offences.

The distinction between alien enemies and alien friends, is a clear and conclusive answer to this argument. Alien enemies are under the law of nations, and liable to be punished for offences against it. Alien friends, except in the single case of public ministers, are under the municipal law, and must be tried and punished according to that law only.

This argument also, by referring the alien act, to the power of Congress to define and punish offences against the law of nations, yields the point that the act is of a penal, not merely of a preventive operation. It must, in truth, be so considered. And if it be a penal act, the punishment it inflicts, must be justified by some offence that deserves it.

Offences for which aliens within the jurisdiction of a country, are punishable, are first, offences committed by the nation of which they make a part, and in whose offences they are involved: Secondly, offences committed by themselves alone, without any charge against the nation to which they belong. The first is the case of alien enemies; the second the case of alien friends. In the first case, the offending nation can no otherwise be punished than by war, one of the laws of which authorizes the expulsion of such of its members, as may be found within the country, against which the offence has been committed. In the second case, the offence being committed by the individual, not by his nation, and against the municipal law, not against the law of nations; the individual only, and not the nation is punishable; and the punishment must be conducted according to the municipal law, not according to the law of nations. Under this view of the subject, the act of Congress, for the removal of alien enemies, being conformable to the law of nations, is justified by the constitution: and the “act,” for the removal of alien friends, being repugnant to the constitutional principles of municipal law, is unjustifiable.

Nor is the act of Congress, for the removal of alien friends, more agreeable to the general practice of nations, than it is within the purview of the law of nations. The general practice of nations, distinguishes between alien friends and alien enemies. The latter it has proceeded against, according to the law of nations, by expelling them as enemies. The former it has considered as under a local and temporary allegiance, and entitled to a correspondent protection. If contrary instances are to be found in barbarous countries, under undefined prerogatives, or amid revolutionary dangers; they will not be deemed fit precedents for the government of the United States, even if not beyond its constitutional authority.

It is said, that Congress may grant letters of marque and reprisal; that reprisals may be made on persons, as well as property; and that the removal of aliens may be considered as the exercise in an inferior degree, of the general power of reprisal on persons.

Without entering minutely into a question that does not seem to require it; it may be remarked, that reprisal is a seizure of foreign persons or property, with a view to obtain that justice for injuries done by one state or its members, to another state or its members; for which a refusal of the aggressor requires such a resort to force under the law of nations. It must be considered as an abuse of words to call the removal of persons from a country, a seizure or reprisal on them; nor is the distinction to be overlooked between reprisals on persons within the country and under the faith of its laws, and on persons out of the country. But, laying aside these considerations; it is evidently impossible to bring the alien act within the power of granting reprisals; since it does not alledge or imply any injury received from any particular nation, for which this proceeding against its members was intended as a reparation. The proceeding is authorized against aliens of every nation; of nations charged neither with any similar proceeding against American citizens, nor with any injuries for which justice might be sought, in the mode prescribed by the act. Were it true therefore, that good causes existed for reprisals against one or more foreign nations, and that neither the persons nor property of its members under the faith of our laws, could plead an exemption; the operation of the act ought to have been limited to the aliens among us, belonging to such nations. To license reprisals against all nations, for aggressions charged on one only, would be a measure as contrary to every principle of justice and public law, as to a wise policy, and the universal practice of nations.

It is said, that the right of removing aliens is an incident to the power of war, vested in Congress by the constitution.

This is a former argument in a new shape only; and is answered by repeating, that the removal of alien enemies is an incident to the power of war; that the removal of alien friends, is not an incident to the power of war.

It is said, that Congress, are, by the constitution, to protect each state against invasion; and that the means of preventing invasion, are included in the power of protection against it.

The power of war in general, having been before granted by the constitution; this clause must either be a mere specification for greater caution and certainty, of which there are other examples in the instrument; or be the injunction of a duty, superadded to a grant of the power. Under either explanation, it cannot enlarge the powers of Congress on the subject. The power and the duty to protect each state against an invading enemy, would be the same under the general power, if this regard to greater caution had been omitted.

Invasion is an operation of war. To protect against invasion is an exercise of the power of war. A power therefore not incident to war, cannot be incident to a particular modification of war. And as the removal of alien friends has appeared to be no incident to a general state of war, it cannot be incident to a partial state, or a particular modification of war.

Nor can it ever be granted, that a power to act on a case when it actually occurs, includes a power over all the means that may tend to prevent the occurrence of the case. Such a latitude of construction would render unavailing, every practicable definition of particular and limited powers. Under the idea of preventing war in general, as well as invasion in particular, not only an indiscriminate removal of all aliens, might be enforced; but a thousand other things still more remote from the operations and precautions appurtenant to war, might take place. A bigoted or tyrannical nation might threaten us with war, unless certain religious or political regulations were adopted by us; yet it never could be inferred, if the regulations which would prevent war, were such as Congress had otherwise no power to make, that the power to make them would grow out of the purpose they were to answer. Congress have power to suppress insurrections, yet it would not be allowed to follow, that they might employ all the means tending to prevent them; of which a system of moral instruction for the ignorant, and of provident support for the poor, might be regarded as among the most efficacious.

One argument for the power of the General Government to remove aliens would have been passed in silence, if it had appeared under any authority inferior to that of a report, made during the last session of Congress, to the House of Representatives by a committee, and approved by the house. The doctrine on which this argument is founded, is of so new and so extraordinary a character, and strikes so radically at the political system of America, that it is proper to state it in the very words of the report.

“The act (concerning aliens) is said to be unconstitutional, because to remove aliens, is a direct breach of the Constitution which provides, by the 9th section of the 1st article: that the migration or importation of such persons as any of the states shall think proper to admit, shall not be prohibited by the Congress, prior to the year 1808.”

Among the answers given to this objection to the constitutionality of the act, the following very remarkable one is extracted.

“Thirdly, that as the Constitution has given to the states, no power to remove aliens, during the period of the limitation under consideration, in the mean time, on the construction assumed, there would be no authority in the country, empowered to send away dangerous aliens which cannot be admitted.”

The reasoning here used, would not in any view, be conclusive; because there are powers exercised by most other governments, which, in the United States are withheld by the people, both from the general government and from the state governments. Of this sort are many of the powers prohibited by the Declarations of right prefixed to the Constitutions, or by the clauses in the Constitutions, in the nature of such Declarations. Nay, so far is the political system of the United States distinguishable from that of other countries, by the caution with which powers are delegated and defined; that in one very important case, even of commercial regulation and revenue, the power is absolutely locked up against the hands of both governments. A tax on exports can be laid by no Constitutional authority whatever. Under a system thus peculiarly guarded, there could surely be no absurdity in supposing, that alien friends, who if guilty of treasonable machinations may be punished, or if suspected on probable grounds, may be secured by pledges or imprisonment, in like manner with permanent citizens, were never meant to be subjected to banishment by any arbitrary and unusual process, either under the one government or the other.

But it is not the inconclusiveness of the general reasoning in this passage, which chiefly calls the attention to it. It is the principle assumed by it, that the powers held by the states, are given to them by the constitution of the United States; and the inference from this principle, that the powers supposed to be necessary which are not so given to the state governments, must reside in the government of the United States.

The respect which is felt for every portion of the constituted authorities, forbids some of the reflections which this singular paragraph might excite; and they are the more readily suppressed, as it may be presumed, with justice perhaps, as well as candour, that inadvertence may have had its share in the error. It would be an unjustifiable delicacy nevertheless, to pass by so portentous a claim, proceeding from so high an authority, without a monitory notice of the fatal tendencies with which it would be pregnant.

Lastly, it is said, that a law on the same subject with the alien act, passed by this state originally in 1785, and re-​enacted in 1792, is a proof that a summary removal of suspected aliens, was not heretofore regarded by the Virginia Legislature as liable to the objections now urged against such a measure.

This charge against Virginia, vanishes before the simple remark, that the law of Virginia relates to “suspicious persons, being the subjects of any foreign power or state, who shall have made a declaration of war, or actually commenced hostilities, or from whom the President shall apprehend hostile designs”; whereas the act of Congress relates to aliens, being the subjects of foreign powers and states, who have neither declared war, nor commenced hostilities, nor from whom hostile designs are apprehended.

II. It is next affirmed of the alien act, that it unites legislative, judicial and executive powers in the hands of the President.

However difficult it may be to mark, in every case, with clearness and certainty, the line which divides legislative power, from the other departments of power; all will agree, that the powers referred to these departments may be so general and undefined, as to be of a legislative, not of an executive or judicial nature; and may for that reason be unconstitutional. Details, to a certain degree, are essential to the nature and character of a law; and, on criminal subjects, it is proper, that details should leave as little as possible to the discretion of those who are to apply and to execute the law. If nothing more were required, in exercising a legislative trust, than a general conveyance of authority, without laying down any precise rules, by which the authority conveyed, should be carried into effect; it would follow, that the whole power of legislation might be transferred by the legislature from itself, and proclamations might become substitutes for laws. A delegation of power in this latitude, would not be denied to be a union of the different powers.

To determine then, whether the appropriate powers of the distinct departments are united by the act authorising the executive to remove aliens, it must be enquired whether it contains such details, definitions, and rules, as appertain to the true character of a law; especially, a law by which personal liberty is invaded, property deprived of its value to the owner, and life itself indirectly exposed to danger.

The alien act, declares, “that it shall be lawful for the president to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect, are concerned in any treasonable, or secret machinations, against the government thereof, to depart,” &c.

Could a power be well given in terms less definite, less particular, and less precise? To be dangerous to the public safety; to be suspected of secret machinations against the government: these can never be mistaken for legal rules or certain definitions. They leave every thing to the President. His will is the law.

But it is not a legislative power only that is given to the President. He is to stand in the place of the judiciary also. His suspicion is the only evidence which is to convict: his order the only judgment which is to be executed.

Thus it is the President whose will is to designate the offensive conduct; it is his will that is to ascertain the individuals on whom it is charged; and it is his will, that is to cause the sentence to be executed. It is rightly affirmed therefore, that the act unites legislative and judicial powers to those of the executive.

III. It is affirmed that this union of powers subverts the general principles of free government.

It has become an axiom in the science of government, that a separation of the legislative, executive and judicial departments, is necessary to the preservation of public liberty. No where has this axiom been better understood in theory, or more carefully pursued in practice, than in the United States.

IV. It is affirmed that such a union of power subverts the particular organization and positive provisions of the federal constitution.

According to the particular organization of the constitution, its legislative powers are vested in the Congress; its executive powers in the President, and its judicial powers, in a supreme and inferior tribunals. The union of any two of these powers, and still more of all three, in any one of these departments, as has been shewn to be done by the alien act, must consequently subvert the constitutional organization of them.

That positive provisions in the constitution, securing to individuals the benefits of fair trial, are also violated by the union of powers in the alien act, necessarily results from the two facts, that the act relates to alien friends, and that alien friends being under the municipal law only, are entitled to its protection.