February 3, 2020: Immigration Laws: 19th Century Origins

[On February 5, 1917 Congress passed the influential and exclusionary Immigration Act of 1917. So this week I’ll AmericanStudy that Act and other stages across the history of immigration laws, leading up to a weekend post on where our laws and narratives stand in 2020.]

On why state immigration laws have to be part of the story, and an important distinction nonetheless.

When I wrote my third book, The Chinese Exclusion Act: What It Can Teach Us about America (2013), I was aware of the existence of state-level immigration laws prior to the passage of the first national laws (the 1875 Page Act and 1882 Exclusion Act). (My initial such awareness was due in large part to a great 1993 Columbia Law Review article, Gerald Neuman’s “The Lost Century of American Immigration Law.”) But my reading of those laws was that they had much more to do with internal migration, and particularly in many cases with concerns about free African Americans and other “unwanted” populations moving into states, than they did with immigrants arriving from other nations. And so one of my book’s overarching arguments was that, up until those first national laws in the last quarter of the 19^th century, there really were no immigration laws, no laws that affected those who came to the United States from elsewhere in the world (not upon entrance, anyway—certainly naturalization laws, like many others, affected them once they were in the US). And I continued to argue that for the next few years, until I read Hidetaka Hirota’s magisterial book Expelling the Poor: Atlantic Seaboard States & the 19^th-Century Origins of American Immigration Policy (2016).

Hirota’s book is magisterial partly for its deep dive into evidence that (as I understand it) had previously gone largely unexamined (Neuman does what he can, but an article is by definition far less in-depth than a monograph), his extensive and multi-layered research into and readings of these state immigration laws. But at the same time, as with all the best historical analyses, Hirota develops through those in-depth readings an overarching argument about how and why these individual state laws reflected a set of exclusionary attitudes and nascent policies, a continuity across the laws and stages that both foreshadowed and became a model for the late-century, national immigration laws and exclusions. As his book’s title suggests, the state laws tended to focus more on “classes” of individuals (both in the literal, economic sense and in the categorical one) than on ethnic or racial communities, although of course there were overlaps between those types and it’s fair to argue (as Hirota does) that the laws were implicitly intended to affect particular ethnic/racial communities. And in any case, toward whomever these laws were directed (including the still-to-my-mind-uncertain question of whether they were aimed more at internal migration or external immigration), they unquestionably modeled the concept of excluding unwanted communities based on narratives of “native” and “non-native” populations in these states.

All of that makes those state laws (and Hirota’s book) vitally important contexts for the multi-stage development of national immigration laws about which I’ll write in the rest of the week’s series. So too are other state laws about which I’ve learned since I wrote that book, including California’s 1850 Foreign Miners’ Tax and 1855 Anti-Vagrancy (or “Greaser”) Act, both of which targeted non-Anglo populations, identified them as “foreign,” and sought to keep them out of (or rather expel them from) the newly annexed US territory. But I would also say that those California laws highlight an important distinction that’s salient for most all of these state laws—they generally didn’t even make much of a pretense of focusing on outside, arriving populations (which the later laws did, although complicatedly as I’ll discuss tomorrow). From what I can tell, these laws tended to be quite overt about their desire to reshape existing state populations, indeed often to expel (as Hirota rightly terms it) foundational communities of color (or otherwise disenfranchised ones, such as the extreme poor) in favor of often newly arrived or at least newly expanded Anglo and upper middle class communities. That certainly makes them an important step toward exclusion, as I’ll argue throughout the week—but it makes it even clearer that they very often were not, at their heart, immigration laws at all.

Next law and stage tomorrow,

Ben

PS. What do you think?