The Lost Century of American Immigration Law

As the debate over state and federal control of immigration status and refugees continues, check out Gerald L. Neuman's Columbia Law Review article "The Lost Century of American Immigration Law":

Legal discussions of immigration regulation in the United States rest upon a myth. This pervasive myth asserts that the borders of the United States were legally open until the enactment of federal immigration legislation in the 1870s and 1880s.

In some ways, this is a pleasant myth, and it seems ungracious to contradict it. The myth reinforces the identification of the United States as a nation of immigrants and provides a historical basis for criticizing later policies of immigration restriction. Moreover, the myth has a substantial foundation in fact: U.S. legal policy warmly welcomed certain kinds of immigration, and restrictive laws were often poorly enforced. Neither Congress nor the states attempted to impose quantitative limits on immigration.

Nonetheless, the borders were not legally open. Regulation of transborder movement of persons existed, primarily at the state level, but also supplemented by federal legislation. Some of this legislation is immediately recognizable as immigration law, while other legislation is less easily recognized because it applied to citizens of other states as well as foreign immigrants.

Read the full paper.