Our Pro-Immigration Founding Fathers
We have lost our way. In despair, I look at a new CBS poll that says 57% of the American public favor starting a program to deport all immigrants in the U.S. illegally. In addition, I found a new scholarly paper that showed how Bing and Google searches for topics like "how to report illegal immigrants" increased both after Trump's 2016 inauguration and in response to Trump's State of the Union speeches. If Trump successfully implements mass deportation, way too many of our fellow citizens will be the collaborators in inflicting the pain of tearing families apart.
Trump claims he wants to make America great again, but when America is great, its greatness lies in the ideals it embodies, not the supposed ethnic purity of its people. When the Founding Fathers wrote a list of their grievances against King George III in the Declaration of Independence, one of their top ten grievances was that King George III had obstructed them from attracting foreign immigrants to the American colonies. The declaration accused George III as follows:
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
How Colonial America Created a Model for Liberal Immigration Laws
The first major colonial charters in the New World used the Biblical term "strangers" (e.g., "I have been a stranger in a strange land" from Exodus 2:22) to signal a willingness to welcome foreigners. The Third Charter of Virginia from 1611 offered a place for "all such and so many of our loving Subjects, or any other Strangers that will become our loving Subjects, and live under our Allegiance." Both the 1620 royal Charter of New England and the 1629 Charter of Massachusetts Bay, which made the original Pilgrim and Puritan colonies possible, included similar language opening the colonies to "Strangers that will become our loving subjects."
In a monarchist society like 17th century England, monarchs were reluctant to absorb foreigners on their own soil, but they were much more willing to send those foreigners overseas to expand their colonial empire. However, in order to convince foreigners to take the risk of sailing overseas on England's behalf, the English kings realized they had to be generous in extending to those foreigners the same rights and protections enjoyed by English subjects.
For example, in the 1662 Charter of Connecticut, Charles II declared that all settlers of the Connecticut colony, regardless of their original birthplace, would have "all Liberties and Immunities of free and natural Subjects within any the Dominions of Us, Our Heirs or Successors, to all Intents, Constructions and Purposes whatsoever, as if they and every of them were born within the Realm of England." Similarly, in 1664, when the Dutch surrendered New Amsterdam to the British, the charter that created the state of New York induced Dutch inhabitants of the colony to stay by classifying them as "strangers not prohibited or under restraint that will become Our Loving subjects and live under Our Allegiance."
Eventually, the American colonists themselves experimented with new ways of expanding immigration rights for non-Englishmen that were otherwise unprecedented by the standards of the 17th and 18th century. In England at that time, if a foreigner wished to be naturalized as an English subject, they had to make a direct appeal begging with Parliament for naturalization rights, which would enact grants of naturalization on a individualized, case-by-case basis. In the American colonies, colonial legislatures and local magistrates turned this practice on its head by granting naturalization to large categories of people, as long as those people could fulfill basic minimum requirements.
As a result of benign neglect by England, American colonies organically developed liberalized procedures for naturalizing foreigners without seeking permission ahead of time from Parliament. In Virginia, a 1658 law allowed foreigners to shed their alien status after living in the colony for only four years and taking an oath of fidelity to England. In 1669, the philosopher John Locke drafted the Fundamental Constitution of the Carolinas, which established a simple enrollment procedure for naturalizing foreign immigrants. All a foreign immigrant in the Carolinas had to do to get the privileges and immunities of an English subject was to sign a copy of the state constitution and promise to be loyal to the Lord Proprietor of the colony. New England had colonial state governments that limited freeman status on the state level to native-born Englishmen, but even so, some foreigners in New England were able to obtain the privileges of an English subject through grants from liberal-minded local officials.
The crown and Parliament tried to restrict the ability of colonial legislatures' to naturalize foreigners who settled the American colonies, but the colonists resisted these attempts. When Protestant Huguenots fled religious persecution in France in the 17th century, the proprietors of the Carolina colony favored naturalizing the Huguenot refugees in the Carolinas instead of in England because "it’s as valid as if it were done here [in England] and much more Difficult to Obtaine [sic] it here." This was especially the case for Jews, who could obtain naturalization in the American colonies, but could not get obtain the rights of an English subject, even if they were born in England. In addition, in 1700, Pennsylvania passed a law automatically granting naturalization to "Swedes, Dutch, and other foreigners" who had been in Pennsylvania territory before William Penn chartered the colony. The English government overrode Pennsylvania's naturalization law five years later, but the Pennsylvanians continued to defy England nonetheless. German immigrants in Pennsylvania even held local and state political office, even when they had not attained naturalization yet.
As the Pennsylvania example indicates, the American colonies were also much more liberal than England in granting rights to foreigners to participate in colonial politics at the state level. When Protestants in Salzburg, Austria were forced out of their country by the Edict of Expulsion in 1731, the state of Georgia encouraged them to settle there where they would enjoy "all the Rights and Priviledges [sic] of Englishmen." In 1751, a German traveler in South Carolina sent a letter back home that expressed astonishment that "a Frenchman and a Dutchman" both held office in the local town council in Charlestown, the state capital.
Similarly, Frenchmen and Germans were allowed to serve as deputies to the English Parliament in South Carolina, as long as they could speak English fluently. A Dutchman, Matthias Vanderhayden, served as a local judge in Cecil County, Maryland for three years before the state Assembly granted him naturalization. In the early 18th century, North Carolina was so liberal in granting political rights beyond natural-born English subjects that a member of Parliament complained in a speech to Queen Anne that "all sorts of people, even servants, Negroes, Aliens, Jews and Common sailors were admitted to vote."
How the American Revolution Created a New Model of Citizenship
The American Revolution had many revolutionary consequences, but one of the most important consequences was to transform the American colonists from subjects of the monarchical power of England into citizens of a democratic republic. In the process, the American revolutionaries created a new model of citizenship that was built on allegiance to principles of democracy and republicanism instead of a person's ethnic bloodline, although in practice republican citizenship was limited to people of white European descent.
In June 1776, the Continental Congress issued a resolution defining what constituted treason against the colonists' war for independence. The resolution stated "all persons abiding within any of the United Colonies, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of such colony." By enacting this resolution, the Continental Congress had declared all inhabitants of the American colonies to be members of a new political community where membership was based on allegiance to the revolution, not ancestry. The resolution also declared that any colonist who would "levy war against any of the said colonies within the same, or be adherents to the king of Great-Britain" would be guilty of treason. By defining treason this way, the Continental Congress specifically and the Englishmen in the colonies generally had to grapple with the reality that having an English bloodline did not guarantee that someone would be loyal to the revolution against the king. Instead, citizenship would have to depend on loyalty to a government and the philosophical principles that supported that government.
In 1777, the Dutch-American lawyer Peter van Schaack was brought before the revolutionary government's Committee for Detecting and Defeating Conspiracies because he preferred to maintain neutrality in the colonists' war against Britain. In his appearance before the committee, which served as the counterintelligence arm of the American Revolution, van Schaack became the first person to articulate the philosophical argument why citizenship in a revolutionary situation must be rooted in the consent of the governed:
I hold it that every individual has still a right to choose the State of which he will become a member; for before he surrenders any part of his natural liberty, he has a right to know what security he will have for the enjoyment of the residue, and “men being by nature free, equal, and independent,” the subjection of any one to the political power of a State, can arise only from “his own consent.”
In doing so, van Schaack articulated a case for a new human right: citizenship is not something imposed or taken away by the whim of government but established through the voluntary allegiance of the individual.
Citizenship via consent was not only attractive to the Americans for philosophical reasons but for profound practical reasons as well. During the American Revolution, the colonies were militarily occupied by Hessians, soldiers rented out to the British by German princes. The American revolutionaries had a clever method for breaking the back of this military occupation, which involved bribing Hessian soldiers with offers of American citizenship. The Continental Congress invoked the presence of German-American immigrants already in the colonies as an inducement to get Hessians to defect. The revolutionary Congress offered the Hessians "lands, liberty, safety and a communion of good laws, and mild government, in a country where so many of their friends and relations are happily settled." Eventually, Continental Congress upped the ante so much that they offered Germans who defected religious freedom, the full rights of native-born citizens, and even "50 Acres of unappropriated lands."
After the colonists won the Revolutionary War, they enacted the Articles of Confederation, which included a "comity clause" that prevented any state from taking away the citizenship of a person granted citizenship by another state. Shortly after that, Congress sent a commission to meet with Native American leaders in the Northwest Territory in order to reassure French settlers living there that "inhabitants who shall profess their allegiance to the United States" will have the liberty and property rights protected. In their quest to settle a large North American continent, the Founding Fathers favored liberal immigration laws to attract settlers and a badly needed labor force for their new republic, but future president James Madison lamented that the Articles of Confederation government was incapable of establishing "a uniformity" as applied to "laws of naturalization."
How the U.S. Constitution Embraced Foreigners of 'Republican Principle'
When the Framers met at the convention to draft the United States Constitution, they had to grapple with the question of citizenship in designing a new republican government based on consent of the governed. When William Patterson introduced the New Jersey plan as the basis for the modern U.S. Senate, the plan also included a resolution that "the rule for naturalization ought to be the same in every state," a provision that made it into the final draft of the U.S. Constitution.
Although states would retain the right to enforce and implement immigration laws, the consensus among the Framers of the Constitution was the country should have liberal, uniform laws for naturalizing foreigners that could not be preempted by more restrictive laws by the individual states. The Framers most clearly articulated this in the debates over the proper qualifications for Congressmen, Senators, and the President. Oliver Ellsworth of Connecticut, later the third Chief Justice of the United States, objected to barring foreigners from joining the Senate because it would deter "meritorious aliens from emigrating to this country." James Madison opposed any minimum residence requirement for naturalized foreigners serving in the Senate, because "it will discourage the most desirable class of people from emigrating to the U.S." In addition, Madison emphasized he wanted "foreigners of merit and republican principles" as members of the U.S. House.
The most conservative participant in this debate, George Mason of Virginia, said he objected to letting "foreigners and adventures make laws and govern for us," but he also said he favored "opening a wide door for emigrants." Mason did not object to having foreign-born persons serving in the legislature per se; he simply thought that 3 years of residence was not enough time to give a foreigner the "local knowledge" necessary to serve in Congress. Eventually, the debate concluded with the final version of the Constitution, which allowed foreigners to serve in the House after 7 years of citizenship and in the Senate after 9 years of citizenship. Only the presidency was barred to anyone who had not been born a natural-born citizen. By designing the Constitution in this way, the Framers intended that participation in government would be determined by "merit and republican principles" not the nation in which you were born.
A Note on Sources: For this experiment in historical writing, I relied heavily on the Avalon Project from Yale Law School for primary sources, especially the colonial state charters I quoted. For the rest of my historical account, I have read widely in a number of sources, but I primarily relied on James Kettner's The Development of American Citizenship, 1609-1870 and Kunal M. Parker's Making Foreigners: Immigration and Citizenship Law in America: 1600-2000.