December 9, 2022: Constitutional Contexts: The 1790 Naturalization Act

[On December 7^th, 1787, Delaware became the first state to ratify the U.S. Constitution. So for the 235^th anniversary of that historic moment, this week I’ll AmericanStudy a handful of Constitutional contexts, leading up to a special weekend post on present issues and debates!]

On why a more forgotten and profoundly frustrating Framing document has to be remembered alongside the Constitution.

In September 2020, I had the honor of delivering the (virtual, obvi) 2020 Constitution Day Lecture at Pennsylvania’s King’s College (one responded to by my friend, King’s College English Professor, and AmericanStudier Guest Poster Robin Field!). I chose as my topic a follow-up to but also extension of my 2019 book We The People: “Debating and Constituting ‘We the People’: The Constitution, the 1790 Naturalization Act, and the Idea of America.” The extension of the book was my argument, first really developed for and in that talk, that while the Constitution certainly contained both the inclusive and exclusionary ideas of America (of how we define that originating “We the People”) on which my book overall focuses, the 1790 Naturalization Act represented a much more overtly exclusionary step in that Framing period, an immediate post-Constitution creation (one passed in March 1790, just a year after the Constitution went into full effect in March 1789) of an exclusionary vision of American identity and community. Here I wants to think briefly about one way that Act built on the Constitution, and one way I’d argue it significantly shifted the national conversation toward exclusion.

As I’ve been arguing since both my third book and my first truly viral piece of online writing, the Constitution is importantly, entirely silent on the issue of immigration laws. But while it doesn’t even acknowledge the possibility of such laws nor grant the power to make them to Congress, the Constitution does grant Congress a related power: Article I Section 8, “Powers of Congress,” includes a clause granting Congress the power “To establish a uniform Rule of Naturalization.” On the one hand, I think this inclusion makes even more striking and significant the fact that the Constitution doesn’t grant any power to make immigration laws—clearly the document and its framers were well aware of immigrant communities in the new United States, but had no sense that there would or should be laws regulating their immigration and arrival. But on the other hand, this clause does make clear that whether and how those immigrants will become citizens is both an issue and a power that the federal government should maintain (as opposed to a state-by-state question, for example, which it very well could have been and in some ways has been at times in our history). While the Constitution itself is entirely ambiguous on what those naturalization rules and requirements should be, it does overtly allow for the possibility and creation of a law like the 1790 Naturalization Act.

But there’s still a world of difference between generally granting a power to Congress and that body using that power to make one of the most overtly discriminatory and exclusionary federal laws in American history (a sadly competitive list to be sure). And make no mistake, that’s what the 1790 Naturalization Act was, through the use in its opening sentence of one very specific and targeted phrase to describe those who could become U.S. citizens: “any Alien, being a free white person…” Citizenship isn’t the only way to be part of a national community, of course, and I’ve spent the better part of my career to date arguing for all the ways in which every American culture and community—perhaps especially those too often formally or legally excluded by laws such as this one—have always been and remain fully and centrally part of “We the People.” But there’s no way around the fact that this Framing era law, one of the first passed by the newly created U.S. Congress under the newly ratified U.S. Constitution, defined those who could join “We the People” through an incredibly narrow, racist, exclusionary lens. That’s not part of the Constitution itself, but it’s an inescapable context for remembering that founding document and its moment.

Special weekend post tomorrow,

Ben

PS. What do you think?