How the Constitution shapes immigration today

The Civil War clears a path towards a national immigration policy because it results in the abolition of slavery—once you remove slavery from the picture, the political and constitutional obstacles to a national immigration policy are removed. That doesn’t mean, however, that Congress would have acted to restrict immigration a generation earlier in the absence of slavery, because at that time most of the immigrants were European. Even the Irish, who were the most despised of the immigrants in the antebellum period, did not face demands for numerical restriction. They faced prejudice. They faced discrimination. But the American economy needed their labor.

The abolition of slavery then changes things and a national policy emerges in the 1860s and 1870s. And the first targets are the Chinese—through what I call the twisted reading of the 13th Amendment that leads to an anti-slavery argument in favor of the exclusion of the Chinese.

The Chinese started arriving in the American West at the end of the 1840s, and they encountered intense hostility. Immigration restrictionists referred to them as “coolies”—a term that described an exploited and degraded contract worker whose conditions supposedly differed very little from slavery.

The problem with that is “the coolie” is not a social reality. It’s an ideological construct. Some Chinese laborers came to the United States under pretty harsh conditions, to be sure, but most, like other immigrants, came in under a variety of arrangements. Some had contracts like indentured servants, and in the 18th century, some were wage workers. Some were entrepreneurs. Some were self-employed.

At this time, there’s a racial backlash against the Chinese in the context of civil war and reconstruction. Notably, the passage of the 14th Amendment in 1868 extends rights of due process and equal protection to all residents, including Chinese immigrants. Chinese immigrants cannot become naturalized citizens at this time, but their children under the 14th Amendment are automatic citizens by birthright.

So restrictionists in the American West find this very threatening, and they craft a devious and unfortunately highly persuasive argument as follows: The 13th Amendment, ratified in 1865, prohibited slavery in the United States. So slavery is illegal in the United States, and that leads to the twisted syllogism: Slavery is illegal in the United States. Chinese laborers are slaves as coolies. Therefore, the Chinese must be excluded.