ORIGINALISM V. LEGISLATING FROM THE BENCH:

THE FRAMERS of the Constitution gave the federal government no authority to restrict peaceful immigration. For the first century or so of US history, most foreigners wishing to move to the United States were legally free to do so. The Constitution delegates many specific powers to the federal government, but a general right to bar or expel immigrants is conspicuously not among them. During the national debate over the notorious Alien and Sedition Acts of 1798 -- which (among other provisions) allowed President John Adams to unilaterally deport immigrants he deemed dangerous -- James Madison and the Virginia General Assembly denounced the laws for investing the president with "a power nowhere delegated to the federal government."

Not until 1882 was there a significant federal law curbing immigration: the unabashedly racist Chinese Exclusion Act, which effectively slammed the door on immigration from China. Instead of striking down the law as unconstitutional, the Supreme Court upheld it on the grounds that the right to exclude foreigners for any reason was an "incident of sovereignty belonging to the government of the United States." That decision -- by the same court that a few years later endorsed racial segregation in Plessy v. Ferguson -- erased a core human right that the authors of the Constitution had never intended to curtail: freedom of immigration.

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