A historical use of foreign law in American courts (immigration power)

[David Upham]

Professor Humbach writes the following:


"Interestingly, the Constitution contains no clause authorizing the 
federal government to regulate immigration. Naturalization, yes, but 
that is an entirely different thing, and the Framers knew the 
difference. "


I have a long half-finished article that suggests otherwise.  The power of "naturalization" was not merely the power to confer the status of "citizen" (which is how it's defined today) but more broadly the privileges of citizenship, including the right to travel and the right to acquire real property.  The Framers thought they were giving the Congress the power to establish a uniform rule to admit aliens to the privilege of travel, real-property acquisition and others.  But in drafting the first naturalization act, Congress abandoned the effort, for a variety of reasons.  Still, I think the preponderance of the evidence suggests that the original Constitution gave Congress the power to admit persons to the rights of citizenship, including the privileges of travel and residence--that is, to "naturalize," aliens, whether partly or fully.

 
David R. Upham, Ph.D., J.D.
Attorney-at-Law
Assistant Professor of Politics
University of Dallas
1845 East Northgate Drive
Irving, TX 75062-4736
Tel.: (972)-721-5186


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