Congressional Power Over Immigrants

[Sanford Levinson]

What, if anything, can be inferred from Article I, Section 10 and the ban
on legislation, prior to 1808, concerning "The Migration and Importation of
Such Persons as any of the States now existing shall think proper to
admit...."?  Does this mean that in the absence of the clause, Congress
*would* have the power to "prohibit" such Migration and Importation?  But
where would such power come from?

Do we read this article as concerning *only* slaves (the only persons who
could be said, like other items of commerce, to be "imported" as chattels)
and therefore without educative value as to, say, indentured servants or
other non-slave immigrants?  That reading, of course, is "historical"
rather than "textual" (perhaps another good example of the difference that
one's interpretive theory might make to constitutional interpretation).
Does anyone know if the M&I clause was used much as an affirmative argument
re congressional power outside the prohibition of the international slave
trade?  I *do* know that it was used by Albert Gallatin and others in 1798
to argue against the constitutional of the Alien Act, which obviously
represented an attempt by Congress to nationalize the law of "migration"?
Though, in keeping with our overall discussion of inherent powers, Gallatin
did argue that Congress had an inherent power to regulate aliens from
countries with which we at war (which, of course, did not include the
French aliens who were the main target of the Alien Act).

Sandy Levinson