With Presidential candidates and pundits talking about how to solve numerous issues related to immigration, we might think this is a modern phenomenon. Whether it is about building walls across the Mexican border, restricting or banning Syrian refugees, banning all Muslim’s, what to do with the estimated ten million undocumented immigrants and how to handle guest worker visas, this debate is unclear at best and is being used by both the Democrats and Republicans for their own purposes.
Many pundits and political leaders also echo the need and call for stronger national security. This debate is not new and in fact it goes back to the founding days of our nation. The debate and the language of the time were just as fierce and demagogic as it is today. It is not an easy set of problems today and was not earlier either. Just last year, presidential candidate Donald Trump and a few legal scholars cited Roosevelt’s application of the Alien Enemies Act, or the act itself, as a good example or legal precedent, to justify Trump’s proposal to ban all Muslims from entering the United States, as part of the war on terror. This seems like such an outrageous claim to many, but is in fact rooted in the history of our nation.
In January of 1795, then a member of the House of Representatives, James Madison representing the Commonwealth of Virginia in the Second Congress introduced a naturalization bill that required any prospective citizen to prove five years of residence and an “oath of attachment” to the Constitution. Federalists sought a longer residency requirement of seven years.
Some, including Representative Samuel Dexter of Massachusetts hinted at intrigue and possible “Popish influence” by Catholics. He and others mocked Catholics in general. Madison, in letters to James Monroe and others found that there was “nothing inconsistent in their religion with the purest republicanism, Americans had no right to criticize Catholics. They had, many of them, proved good citizens during the Revolution.” A note here, the term republican refers to the Democratic-Republican Party, which favored states rights and the inclusion of the Bill of Rights after the passing of the Constitution in 1789 and political philosophy of the time championed by Jefferson and Madison among others.
The Federalists, who sought a stronger national or federal government and institutions, championed by Alexander Hamilton, John Adams and others were the competing political philosophies at the time. The fierce debates and compromises laid the foundation for the functioning of our republican government and its institutions. These acts also sought to neutralize the perceived or real threat of the French, and then ruled by Napoleon as an Emperor and US citizens sympathetic to French interests. Catholics and the French were the Muslims of their day. British, French and Spanish interests and intrigue were still very real at the time and the nation was not yet firmly established, so these fears were real, but the threat of a “new monarchy” with the growing influence of the Federal government was feared as well.
The Naturalization Act of 1798, passed into law by President John Adams required a five-year notice period and a fourteen-year waiting period of residency before a person could become a citizen. This applied only to “free-white persons,” as the issue of slavery had not been resolved.
The Aliens Friends Act that allowed the President to imprison and deport non-citizens deemed “dangerous to the peace and safety of the United States” followed the Naturalization Act. The Alien Enemies Act allowed the President to also imprison or deport any male over the age of 14 from a hostile nation. The Sedition Act restricted speech that was critical of the Federal government.
Under the Seditions Act, there were several highly visible prosecutions for those that opposed the Federalist President and founding father, John Adams. John Callender, a Scottish citizen was imprisoned for nine months and fined $200 for publishing a booklet entitled The Prospect Before Us, where he criticized President Adams as “a continual tempest of malignant passions” and a “repulsive pedant, a gross hypocrite and an unprincipled oppressor”. Then Vice-President, Thomas Jefferson approved the text prior to its publication. At this time, the Vice-President was really the runner up to the President and not a running mate as it is today.
Benjamin Bache, the publisher for a pro- Democratic-Republican newspaper, the Aurora accused George Washington of “incompetence and financial irregularities,” and “the blind, bald, crippled, toothless, querulous Adams of nepotism and monarchical ambition.” Bache was arrested in 1798 but died of yellow fever before his trial.
Matthew Lyon, a Democratic-Republican congressman from Vermont was the first individual placed on trial under the Alien and Sedition Acts. In 1800 he was arrested under the Sedition Act for writing an essay published in the Vermont Journal. He accused the administration of “ridiculous pomp, foolish adulation, and selfish avarice”. He also published an article entitled The Scourge of Aristocracy. He was fined $1,000 and sentenced to four months in jail. After his release, he returned to Congress.
These Acts and the Stamp Acts of 1798, which caused a furor among colonists because they sounded very similar to the taxes imposed by the British led to victory of Jefferson over John Adams in the 1800 election. Under President Jefferson and the Congress, the Aliens Friends Act and the Seditions Act were allowed to expire. Jefferson pardoned all those in jail under these acts and their fines were eventually repaid.
The Enemy Aliens Act remained on the books and was rewritten as part of the US war and national defense statutes (50 USC 21-24) at the time of the First World War. In 1941, President Franklin Roosevelt issues Presidential Proclamations siting the revised Act in 2525 (Alien Enemies – Japanese), 2526 (Alien Enemies – German), and 2527 (Alien Enemies – Italian). As late as 1948 German citizens were held on Ellis Island and a camp in North Dakota and the internment of citizens of Japanese descent were held in California, Hawaii and other states. President Harry Truman eventually used his executive power to eliminate most of the effects of these acts, but not all.
In the Supreme Court decision of Ludecke v. Watkins (1948), the Court weighed how to interpret when to release German alien Kurt Ludecke who was detained in 1941, under Roosevelt’s Proclamation. Ludecke was held after cessations of hostilities were ended in 1945. In 1947, he petitioned for a writ of habeas corpus to release him, after the Attorney General ordered him deported. The Supreme Court then ruled 5-4 to release Ludecke, but left the Alien Enemies Act standing. It allowed for detainment beyond the time hostilities ceased and an actual treaty was signed with the hostile nation or government.
The immigrants of the 19th century did not seek government benefits or entitlements, only the opportunity to pursue their dreams and live under a nation of laws, governed by a Constitution and not to the vagaries of monarchies or unstable governments. Most sought economic opportunity. While the challenges and issues facing us today are different, I see a few core principles that might help us navigate this issue. I think Madison might approve of these basic principles and in his role as the architect of our Constitution, he had to contend with very strong opposition from not just other founding fathers like John Adams and Alexander Hamilton but leaders who directly supported slavery and other highly contentious issues.
- A waiting period before benefits are available.
- An oath of allegiance to our Constitution.
- Clear work visa programs. We also have a need for immigrants to fulfill various labor and economic requirements, including farm labor, but also needs in the high tech field.
- A program for existing undocumented residents, seeking residency and citizenship that would allow them to obtain the benefits of full citizenship over time. As an architect of the Bill of Rights, I cannot imagine Madison considering deporting 10 million people.
- Strong sanctions for companies that hire undocumented workers.
- An effective dialogue with Mexico and other key countries to discuss common approaches. Madison dealt with England, Spain and France all at the same time.
- Forget building a wall, Madison and Jefferson oversaw the Louisiana Purchase and an expansion of American influence over North America.
- I think Madison would seek solutions in balancing security (from modern day terrorism) vs privacy and the Bill of Rights by providing the Executive enough power to provide security, but balancing that with his fidelity to the Bill of Rights.
- Madison was a tireless advocate for the benefits of our republic and our Constitution. Let’s do the same and welcome all those who share our values, regardless of race, religion or nationality.
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