This essay first appeared on The Originalism Blog on May 26, 2023. It discusses two issues of importance to constitutional research: (1) Whether a post-ratification statement by James Madison sheds light on Congress’s immigration power and (2) why post-ratification documents generally are useless for explaining the Constitution’s original meaning.

A debate, held both on this site and on The Volokh Conspiracy, has erupted between Ilya Somin and Andrew Hyman over the extent to which the federal government and states may restrict immigration. Professor Somin denies that Congress has power to prevent immigration to persons from nations with which the United States is not at war; Andrew Hyman argues that Congress has that power under the Constitution’s Define and Punish Clause (Article I, Section 8, Clause 10).

To support his case, Professor Somin relies partly on an 1800 Virginia legislative report, “Proceedings of the Virginia Assembly, on the Answers of Sundry States.” The author was James Madison, and its purpose was to defend the famous 1798 Virginia Resolutions.

The Virginia Resolutions were critical responses to two laws Congress recently had passed as part of a four-law package. The Virginia Resolutions argued that the Alien Friends Act and Sedition Act were unconstitutional. However, the Resolutions had, in turn, encountered heavy fire from some other state legislatures. The Report of 1800 was Madison’s way of responding. Indeed, one reason he had secured election to the House of Delegates this late in his career was to shepherd this new statement through the legislature.

This is not the first time legal scholars have appealed to Madison’s 1800 Report to opine on the Constitution’s treatment of immigration (see, for example, this pdf). However, this post argues that reliance on the Report for that purpose is inconsistent with appropriate scholarly standards.

I so conclude for two reasons. The less important reason is that the Report actually does not address Congress’s power over immigration. The more important reason is that even if it did so, it would not be very reliable evidence.

In the service of full disclosure: My own research has persuaded me that the Constitution’s Define and Punish Clause surely grants Congress power to curb non-commercial immigration (pdf). There was little discussion of the precise issue during the ratification debates (although there was some), because America was seeking as many immigrants as possible. But there is other evidence: All the international law books familiar to Americans stated that sovereign control of borders was a component of the law of nations. Border control was discussed in treatises, or parts of treatises, devoted exclusively to international law and as a component of international law. These treatises included five titles frequently cited in the courts during the ratification era, and recommended to the Confederation Congress by a congressional committee of which Madison and two other framers were members.

Prof. Somin argues that border restrictions and their enforcement were merely part of the municipal law. Professor Somin is an outstanding legal scholar, but in this instance I do not believe his conclusion is tenable.

What’s Good About Madison’s Report

In his Report, Madison contended the federal government has only those powers the Constitution grants it. In other words, the federal government does not have an unstated reservoir of “inherent sovereign authority,” as claimed by Justices such as George Sutherland (pdf) and law professors such as John Mikhail (pdf). As Madison observed, during the ratification debates the Constitution’s advocates uniformly represented it as conveying only limited enumerated powers (pdf, pdf, pdf). And among those who said so was the very person who had invented the “implied sovereign authority” doctrine for the Articles of Confederation: James Wilson.

Thus, in arguing against the Alien Friends Act and the Sedition Act, Madison quite properly contended that the Constitution’s enumerated powers do not confer the authority those laws purported to exercise.

In his Report, Madison also affirmed, as he had affirmed elsewhere, that the Constitution derives its force from the ratification and must be construed as understood by the ratifiers. This observation was simply an application of the dominant Founding-era interpretive method applied to most documents—with the notable exception of real property conveyances (pdf).

These salutary aspects of the Report do not, however, render it appropriate evidence of the understanding of, or meaning to, the ratifiers.

The Report’s Argument

Here are excerpts from the Report most relevant to the claim that Congress had no power over immigration. Italics are in the original. (Apology: As a stylist, Madison was no Gouverneur Morris.)

“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. . . . With respect to alien enemies, no doubt has been intimated [in the Virginia Resolutions] 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 . . . .

* * * *

“[I]t 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 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.

* * * *

“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.”

A hasty reading of this passage might leave one with the impression that Madison was laying down the invariable rule that the federal government has authority to punish aliens from enemy nations but no authority to punish those from friendly nations; and that punishing the latter is solely a matter for the municipal—i.e., state—law.

A Closer Reading

The Alien Friends Act was primarily directed at deportation, and a closer reading of this passage shows Madison was discussing only deportation, not immigration per se. It is true, as Prof. Somin states, that the statute contained some minor restrictions on immigration. Significantly, however, Madison did not challenge those.

The passage further shows that Madison was criticizing the law for authorizing presidential deportation, not just of any aliens from friendly countries, but only of those in the United States legally. He assails deportation without due process from a country “into which [they have] been invited.”

“Alien friends,” Madison wrote, “except in the single case of public ministers, are under the municipal law.” In 18th century jurisprudence, this was so because an alien friend coming into the country legally entered into temporary “allegiance” to the receiving sovereign. By subjecting himself to the receiving sovereign’s laws, the alien friend became a temporary “subject” (subditus) of that sovereign—conditional only on the alien’s overriding obligation to his own sovereign. In return, the alien friend was entitled to the receiving sovereign’s protection.

A prominent example of submission to a sovereign’s laws triggering a duty of protection was Somerset v. Stewart, the 1772 case that effectively abolished slavery in England. James Somerset had been a slave in Virginia. But his arrival in England and submission to her laws rendered him (in the words of his legal counsel) “liable to all their penalties and consequently has a right to their protection” (pdf).

(Madison’s exception for “public ministers” reflected the rule that a diplomat on foreign territory was not in allegiance to the receiving sovereign. Wherever he trod became, as to him, a plot of his homeland.)

So far, so good: Alien friends were subject only to the municipal law. But what was an alien friend?

This term encompassed most visitors from friendly nations—but not all of them. A person from a friendly country might show himself hostile to the laws of the receiving nation and therefore not in allegiance to it. No allegiance, no protection.

An example of the latter situation was reported in Vaughan’s Case, 2 Salk. 635, 91 Eng. Rep. 535 (undated). This was a decision by Sir John Holt, one of England’s most highly regarded Chief Justices (served: 1689-1710), and reported by William Salkeld, one of the more highly-regarded case reporters.

Vaughn was a Dutchman at a time when the United Provinces of the Netherlands was in alliance with Great Britain. It therefore was claimed that he was a friendly alien. But he had allied himself with France, a nation with which Britain was at war. That made him an enemy alien, notwithstanding his nationality. Of such people, Justice Holt said, “[T]the French subjection makes them French subjects in respect of all other nations but their own.”

To put the principle more generally: An immigrant or foreign visitor from a friendly nation puts himself under the protection of the receiving sovereign—and therefore becomes entitled to the protection afforded an alien friend—by subjecting himself to the receiving sovereign’s laws. He is the kind of person Madison describes as coming into a country

into which he has been invited, as the asylum most auspicious to his happiness . . . 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 . . . .

By contrast, a person seeking to enter the country illegally (such as, but not limited to, an invader—a word, incidentally, whose Founding-era dictionary meaning is broad enough to include much of what is now going on at the southern border) does not subject himself to that country’s laws. He is not, as Madison was using the term, a “friendly alien.”

The More Serious Objections

Readers who have spent much time with academics in other disciplines may be aware that, as a general proposition, legal scholarship is not highly regarded. (The sneer about “law office legal history” comes to mind.) Our legal training, coupled with the fact that most of us have no training in historical methods, tempts us to prefer a superficially appealing argument to a true one. All too often, we yield to the temptation by cherry-picking relevant evidence—or wandering into distant fields in search of other cherries to pick.

A common symptom of this, in my view, is the marshaling of sources arising well after the Constitution’s ratification to “prove” ratification-era meaning or understanding. Historians sometimes call this “reading history backwards.” They know it more formally as “anachronism.”

There are all sorts of reasons why post-ratification statements are generally useless for showing ratification-era understanding. Here are some:

•           Memories fade.
•           Ratification-era participants who might have contradicted those statements often were not around to do so: When the 1800 Report was published, such leading participants in the constitutional debates as Benjamin Franklin, Patrick Henry, George Mason, Roger Sherman, Melancton Smith, and George Washington were all dead. John Rutledge was still alive, but suffering from mental illness. Rufus King was abroad. And so forth.
•           Incentives change. The same person who, when presenting the Constitution to the public in 1788, had an incentive to characterize the federal government’s powers one way, often had an incentive to characterize them differently later on. By way of illustration, the difference is great between Alexander Hamilton’s constitutional arguments in Federalist No. 16 (prior to ratification) and in his Report on Manufactures (after ratification).
•           Alliances change. In particular, they changed dramatically after the first session of the First Federal Congress, as the case of Madison illustrates: Prior to that time, he was allied with Hamilton. After that time, he was allied with Thomas Jefferson.
•           Context and language change.

Using Madison’s 1800 Report to show the understanding of the ratifiers a decade earlier is subject to all of those objections.

Of course, it might be contended that under the rule of “practical construction,” one could use the Report to “liquidate” the Constitution’s true meaning. But the rule of practical construction requires both an initial ambiguity and a uniform subsequent interpretation. Even if the former were present (and in view of the evidence on the scope of the Define and Punish Clause, I don’t think it is), the latter is not: Far from expressing a universal view, the Report was a highly partisan production whose conclusions on the Alien Friends Act were opposed by some other Founders. And even if the Report could be read as denying a congressional power over immigration, it would be inconsistent with long-standing practice.

The Report of 1800 confirms many earlier public representations about the Constitution as a document conveying only those powers enumerated and their incidents. It also applies the then-prevailing interpretive technique to the instrument. Further, it is evidence of Madison’s constitutional views at the time, as well as those of a majority of the Virginia legislature.

But it is not useful evidence of the Constitution’s treatment of immigration.