Month: July 2021

Last week, two justices dissented from the denial of certiorari in Eychaner v. Chicago, which asked the Court to reconsider Kelo v. New London. (Justice Kavanaugh voted to grant, but did not join the dissent.) Ilya Somin commented on the cert denial and Josh Blackman speculated on why the cert petition did not attract more votes from the conservative justices.

Kelo v. New London is one of the most reviled Supreme Court decisions of the past twenty years. It prompted a substantial backlash, spurred eminent domain reform throughout the nation, and inspired a movie. As a policy matter, it is abominable that the government may take someone’s home to facilitate economic development plans of corporate interests, made all the more so here because the promised economic development never even occurred.

There is broad agreement (at least on the political Right) that such uses of eminent domain are bad. But does that mean the use of eminent domain for economic development is unconstitutional? I am unconvinced.

The standard argument against Kelo is that the Takings Clause of the Fifth Amendment limits the use of eminent domain to “public use,” and that economic development of the sort at issue in Kelo does not constitute “public use,” in part because New London gave the property in question to private economic interests. The key element of this argument is that the Fifth Amendment imposes a “public use” limitation on eminent domain. But is this premise correct?

To answer this question, it is useful to start with the text of the Fifth Amendment. Here’s the whole thing:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Note, for starters that there is not one clause concerning the taking of property, but two (both highlighted above). The Fifth Amendment bars all takings of property “without due process of law.” It then imposes an additional requirement, “just compensation,” on those takings that are “for public use.”

The first thing to note is that in the Takings Clause itself, “public use” is not written as a limitation. The text does not read “nor shall private property be taken other than for public use.” Rather it identifies a type of taking—those “for public use”—that require compensation. “Public use” is used to differentiate a subset of takings. It is not written as a requirement or limitation.

Read in the context of the full amendment, this makes sense, for there are all sorts of takings or property for which compensation is not required, including taxes, fines, and seizures. Those takings require due process, but do not require “just compensation.” It is when property is taken for a public purposes (as opposed to as a punishment or as an exaction) that compensation is required. To restate: The text requires Due Process for all takings of property, and then requires compensation for the subset of takings that are “for public use.” Like it or not (and I most definitely do not) this is the most straight-forward reading of the constitutional text, and there is little historical or other evidence to the contrary.

If one goes back and reads Justice Thomas’ Kelo dissent, one finds lots of citations to sources extolling the importance of private property, but one finds a conspicuous lack of sources that contest this understanding of the Fifth Amendment’s text. Indeed, the ratification debates contain precious little on the Takings Clause, nor do other Founding Era sources. One can find Founding Era complaints about naked transfers of property, as in Justice Chase’s opinion in Calder v. Bull, but the alleged violation there is potentially one of Due Process, not the “public use” requirement.

One can also imagine arguments that a given taking of property is not legislatively or constitutionally authorized, such as being beyond the enumerated powers of the federal government (which, until passage of the Fourteenth Amendment, is all the Fifth Amendment constrained), but this is a different argument from the claim that the Takings Clause imposes a “public use” limitation. It may well be that the federal government has little ability to transfer private property from one person to another for the purposes of economic development, but this would have been due to the constrained nature of the powers enumerated in Article I, section 8, not any constraint imposed by the Takings Clause.

An obvious objection is that, whatever the Fifth Amendment meant when ratified, our understanding of the Takings Clause, and the extent to which it constrains state governments, was transformed by the Fourteenth Amendment. Thus, just as 1868 informs how the Second Amendment’s right to keep and bear arms applies to the states more than 1791, so too 1868 tells us more about how the Takings Clause applies to state and local governments than 1791. This makes sense, and I am open to the argument that protection of private property rights incorporated against the states through the 14th Amendment is more capacious than that provided by the Fifth Amendment’s text (as Ilya has argued), but I have yet to be convinced.

Unlike the federal government, state governments have a residual police power which has long included a robust power of eminent domain, and such powers were often used to promote economic development, such as when states would authorize grist mills to flood upstream lands. The Takings Clause, as incorporated against the states through the Fourteenth, clearly requires compensation for such takings. Yet the primary constraints on the abuse of such power for impermissible purposes comes not from the Fifth Amendment, but from limitations in state constitutions and the political process (which, thankfully, was energized by Kelo).

That the Takings Clause of the Fifth Amendment does not impose a “public use” requirement on eminent domain does not mean that such limitations cannot be found under state constitutions. State-level protections of property often use different language, and were adopted under different circumstances. Accordingly, there is nothing inherently suspect about state supreme court decisions providing more robust protections for private property, as occurred here in Ohio. Whether these state-level decisions are correct prompts a different inquiry. It also may be the case that some sorts of naked A-to-B property transfers violate other constitutional requirements, as Justice Kennedy suggested in his Kelo concurrence, but this (again) is a separate question from whether the Fifth Amendment’s Takings Clause imposes any such limitation.

In conclusion, I will return to where this post started. Many originalists seem to take it as an article of faith that the Takings Clause imposes a public use requirement on exercises of eminent domain. Yet neither the text nor the available historical evidence provides much support for this claim. As a believer in robust protections for private property, I wish this were not so. Alas, not every injustice is unconstitutional.

UPDATE: My co-blogger Ilya Somin disagrees.

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For the past two terms, Joan Biskupic has published a series of remarkable reports based on Supreme Court leaks. In 2019, her story on the Census case was published on September 12. And in 2020, her four-part series on the Chief’s power was published the week of July 27. Last term concluded on July 9, 2020. And the leaks came 18 days later. If we use that number as a benchmark, we should expect reports circa July 20, 2021. The countdown to Biskupic’s bombshells commences.

Of course, it’s possible that Joan does not get any scoops this year. Or maybe her insights will not be as deep as they were last year. And what might be the cause of such decline? One obvious factor would be the absence of Justice Ginsburg. She was always very chatty in public. It stands to reason she was even more open in private. Or, perhaps, Chief Justice Roberts has taken my advice and tamped down on the leaks. Tick tock.

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As I noted a few weeks back, the Liberty Fund’s Online Library of Liberty has been hosting a “Liberty Matters” discussion on “Liberty and Virtue: Frank Meyer’s Fusionism.” Reason‘s Stephanie Slade offered the lead essay, followed by commentary by William Dennis, Henry Olsen, and myself.

For those interested, here’s an index of the contributions to the discussion (thus far):

• Stephanie Slade, “Freedom and Virtue: Masters of Their Own Domains” [Posted June 7, 2021]
• Jonathan Adler, “Is Fusionism a Zombie Ideology?” [Posted June 10, 2021]
• Henry Olsen, “Fusionism: Freedom’s Handmaid” [Posted June 14, 2021]
• William Dennis, “Friendly AND Ferocious Fusionism” [Posted June 18, 2021]
• Stephanie Slade, “Righteous Meddling and Human Excellence” [Posted June 22, 2021]
• Jonathan Adler, “Conservatives’ Burden” [Posted June 25, 2021]
• Henry Olsen, “Conservatism: A Better Guarantor of Liberty” [Posted June 29, 2021]
• William Dennis, “Virtuecrats versus Liberty for All” [Posted July 2, 2021]

One issue that arises in the discussion is how to think about Meyer’s (in my view, unwarranted) hostility to Lincoln. As I discuss in this paper on Meyer and federalism, Meyer was unduly influenced by the constitutional analyses of James Kilpatrick, as were many conservatives of the time. While Meyer was not as tolerant of segregationists as some others within the National Review orbit, Kilpatrick’s influence did lead Meyer to some wrong-headed conclusions. But, contra Olsen, I am not convinced this tells us much about the relevance or importance of Meyer’s overall project. Meyer should not be dismissed for getting Lincoln wrong, any more than a contemporary theorist should be dismissed out of hand for, say, misjudging Trump.

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In late June I recorded a Federalist Society “Courthouse Steps” podcase on California v. Texas with Mario Loyola. The audio of that teleforum is now available here.

We agree that the Court was correct to reject the plaintiffs’ claims in California v. Texas, but had some disagreement on how the Court should have gotten there. I hope the recording is of interest to some VC readers.

(Note: We had a zoom glitch in the middle, but it should not get in the way of the content.)

All told, California v. Texas was not the third, but the seventh ACA case to reach the Supreme Court. The contraception mandate and cost-sharing payment cases are ACA cases too. California v. Texas will also not be the last time the ACA reaches One First Street. For reasons I explained in this little paper from a few years back, the ACA’s text, structure, history, and content created a perfect storm for ongoing litigation, and the Supreme Court will eventually become as familiar with this statute as it is with the Clean Air Act or (even more likely) ERISA.

All of my prior blogging on California v. Texas is indexed here.

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From the opinion in U.S. v. Maxwell by Judge Alison Nathan (S.D.N.Y.), decided June 25 but just unsealed on Thursday:

Maxwell moves to suppress evidence obtained through a grand jury subpoena to a law firm involved in earlier civil litigation against her. She contends that because the documents sought by the subpoena were previously subject to a protective order, the Government obtained them in violation of her rights against compelled self-incrimination, against unreasonable searches and seizures, and to due process of law. For the reasons that follow, the Court concludes that the evidence should not be suppressed and that Maxwell is not entitled to an evidentiary hearing….

In late 2015, Virginia Giuffre sued Maxwell for defamation. Giuffre alleged that Maxwell defamed her by accusing her of lying about Maxwell and Jeffrey Epstein sexually abusing her. The law firm Boies Schiller Flexner LLP (BSF) represented Giuffre in the dispute. The parties litigated the case for about two years before signing a confidential settlement agreement.

Early in the civil litigation, one of the attorneys representing Giuffre approached an Assistant United States Attorney (AUSA) in the Southern District of New York and requested a meeting to provide the Government information on possible criminal conduct. The AUSA met with three attorneys who represented Giuffre on February 29, 2016. The AUSA’s notes from the meeting reflect that it focused primarily on Epstein. However, the notes also identify Maxwell as Epstein’s “head recruiter” of underage girls. The attorneys sent a few follow-up emails to the AUSA in the following weeks. The United States Attorney’s Office did not pursue a criminal investigation at that time….

About two weeks after the February 29, 2016 meeting, the judge presiding over the civil case entered a protective order that allowed the parties in that case to designate documents produced in discovery as confidential. That order prohibited the parties from disclosing confidential documents to anyone other than people involved in the case….

[The protective order] allowed the court to modify the order at any time for good cause after notice to the parties. It also allowed the parties to use any confidential information at trial, at which point that information would become public. It required the parties to return or destroy confidential records after the case ended.

Following entry of the protective order, Maxwell testified in two depositions in the civil case. The parties designated the depositions as confidential under the protective order. [Several counts of the] superseding indictment[s] in this case … charge that Maxwell made false statements under oath in each of the depositions.

The Government represents that the Office of the U.S. Attorney for the Southern District of New York formally opened its investigation into Epstein on November 30, 2018, following a series of articles in the Miami Herald about Epstein’s conduct and the lenient plea deal he received in the Southern District of Florida. The same day, the AUSA who attended the February 2016 meeting forwarded the emails she received from attorneys in the civil case to the prosecutors working on the fledgling investigation. There is no indication that she was involved in the decision to begin the investigation into Epstein in 2018.

About two months later, the Government served a grand jury subpoena on BSF seeking to obtain documents for its investigation of Epstein. BSF informed the Government that many of the requested documents fell under the protective order. The Government then applied for an ex parte order modifying the protective order to allow BSF to comply with the subpoena. The Government made a second, similar application in connection with a protective order in a different case….

[In 2019,] Judge McMahon issued [an] order granting the Government’s application [to modify the protective order, for two reasons:] First, Maxwell did not reasonably rely on the protective order because it was subject to modification. Second, the Government had shown extraordinary circumstances supporting modification of the protective order because it could not otherwise obtain information about the high-profile targets of its investigation without tipping them off….

Following Judge McMahon’s order, BSF turned over its records from the civil litigation to the Government. Those documents included transcripts of Maxwell’s depositions. The Second Circuit later held that the court in the civil case withheld far too many documents from public view and ordered that many of them be made publicly available. Much of what the Government obtained through its subpoena, including the bulk of the deposition transcripts Maxwell now seeks to suppress, have since been unsealed by court order in the civil case.

The court concluded that this didn’t violate Maxwell’s privilege against self-incrimination:

Maxwell contends that the Government violated her right against compelled self-incrimination by obtaining copies of her deposition transcripts from her earlier civil case. She acknowledges that she could have, but did not, invoke her Fifth Amendment rights to avoid providing incriminating testimony. However, she contends that she testified only because she believed the protective order in that case would prevent the Government from obtaining her testimony and using it in a subsequent criminal case against her.

Second Circuit precedent expressly forecloses Maxwell’s argument. “A Rule 26(c) protective order, no matter how broad its reach, provides no guarantee that compelled testimony will not somehow find its way into the government’s hands for use in a subsequent criminal prosecution.” Andover Data Servs. v. Stat. Tabulating Corp. (2d Cir. 1989). As the Second Circuit has explained, a civil protective order may (as here) be overturned or modified by another court in another proceeding. A civil protective order may (as here) be limited by its terms to pretrial proceedings, in which case the parties must expect that confidential documents will come to light as the case progresses. A court may (as here) unseal documents covered by a civil protective order in the public interest. Civil litigants have neither a reasonable basis nor legal entitlement to rely on a civil protective order against the use of their testimony in a subsequent criminal proceeding….

The Government would also be entitled to use Maxwell’s deposition testimony against her in her perjury trial notwithstanding any violation of her right against compelled self-incrimination. The Supreme Court has held that a defendant may be prosecuted for false statements in unlawfully compelled testimony. See United States v. Wong (1977); United States v. Knox (1969)….

The court also concluded that the government’s use of the documents doesn’t violate the Fourth Amendment:

A person has a reasonable expectation of privacy only if they seek to keep something private and have an objectively reasonable expectation that it will remain private. The Supreme Court has held that people generally lack a reasonable expectation of privacy in information they voluntarily disclose to others. This is true even if they expect that information to be safeguarded and used only for specific purposes. Thus, the Supreme Court has held that police may obtain bank records or a list of phone numbers a person has dialed without a warrant. In a lone exception to this rule, the Supreme Court has held that people have a reasonable expectation of privacy in geographical information obtained from their cell phones, because that information provides a comprehensive account of a person’s movements akin to invasive physical surveillance.

Under this standard, Maxwell had no reasonable expectation of privacy in the documents produced during the civil litigation. Those documents may not have been public, but they were hardly private….

Second Circuit precedent makes clear that Maxwell had no reasonable expectation that documents covered by the protective order would remain shielded from view of the public or prosecutors. The Second Circuit has cautioned civil litigants that a civil protective order is no guarantee against the use of evidence in a subsequent criminal prosecution. Second Circuit precedent allows a court in a subsequent proceeding to modify a protective order. And if confidential materials turn out to be relevant to a court’s ruling, Second Circuit precedent creates a strong presumption that they will be made public notwithstanding any protective order. These are not remote or theoretical possibilities. Each of them predictably came to pass in this case. It is “unrealistic” to believe that deposition testimony central to a civil case of high public interest will remain effectively sealed indefinitely.

Maxwell claims that she did not expect the Government to be able to obtain her deposition testimony, and that if she knew it would, she never would have testified. If Maxwell subjectively harbored this belief, it was nonetheless unreasonable. The Court further notes that Maxwell was ably represented by a number of attorneys during the civil litigation, who the Court is confident were familiar with the precedents governing protective orders and public access to judicial documents.

And the court likewise rejected arguments based on the government’s apparent omission of certain information in the 2019 hearing before Judge McMahon.

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From Jean v. EEOC (S.D.N.Y.), decided by Judge Louis L. Stanton in November, but just added to Westlaw:

Plaintiff claims that Defendant EEOC “mishandled” her employment discrimination case filed in Massachusetts; she also claims that her employer, the Town of Framingham, Massachusetts, “doxed” her by publicizing sensitive documents about her.

Three days after filing her complaint in this Court, Plaintiff filed a letter-motion requesting that the “case files” in this action be placed under seal because: (1) the “EEOC case information [is] confidential and not subject to FOIA [Freedom of Information Act] requests,” and (2) her “file includes many private information about myself and others.” …

Both the common law and the First Amendment protect the public’s right of access to court documents. This right of access is not absolute, and “the decision as to access [to judicial records] is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.”

The United States Court of Appeals for the Second Circuit has set forth a three-part analysis to determine whether a document relating to a lawsuit should be made available to the public. First, the Court must determine whether the document is indeed a “judicial document,” to which the public has a presumptive right of access. Judicial documents are those that are “relevant to the performance of the judicial function and useful in the judicial process.” Second, if the Court determines that the materials to be sealed are judicial documents, then the Court must determine the weight of the presumption of access. “[T]he weight to be given the presumption of access must be governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts.” Finally, “the court must balance competing considerations against it.” “Such countervailing factors include but are not limited to the danger of impairing law enforcement or judicial efficiency and the privacy interests of those resisting disclosure.” “The burden of demonstrating that a document submitted to a court should be sealed rests on the party seeking such an action.”

A litigant’s concern that information contained in court documents will bring her adverse publicity or negatively impact her are insufficient reasons for a court to seal documents. See, e.g., Bernsten v. O’Reilly (S.D.N.Y. 2018) (collecting cases); Doe I v. Individuals (D. Conn. 2008).

The Court concludes that the circumstances here are not sufficiently extraordinary to outweigh the presumption in favor of public access to court records. Although Plaintiff does allege that sensitive information about her was publicized by her employer, she does not describe the nature of that information in her complaint. Moreover, the attachments to her complaint—which include a generic chart and three articles from the online news site, Vox—do not contain any information specific to Plaintiff. The only document that concerns Plaintiff personally is a decision from a Massachusetts state agency (the Executive Office of Labor and Workforce Development) regarding her separation from her employer. But Plaintiff has redacted the personal information in this document; moreover, the facts described are only of concern to Plaintiff and her reputation. While the Court is sympathetic to Plaintiff’s desire to maintain her privacy, the public’s right to access court documents prevails. The Court therefore denies Plaintiff’s request to seal her complaint.

The underlying dispute appears to be the one discussed in this newspaper article, which suggests that the plaintiff was the Community Development Coordinator of Framingham, Massachusetts:

“The apartheid-like and hostile environment where an entire institution used its full strength of force without any external protection for me from its abuses literally made me sick,” Jean wrote in a statement she released on Tuesday.

City officials vehemently deny Jean’s charge of discrimination, and members of the Finance Subcommittee say their questioning was only an attempt to understand how the block grant funds under Jean’s management were administered. The city typically receives about $500,000 a year in community development block grants.

The judge also dismissed the lawsuit against the EEOC, on the grounds that the EEOC can’t be sued with regard to its supposed mishandling of complaints.

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Why does Israel attract so much attention and criticism relative to other states involved in much bloodier conflicts? For a long time, I was in the camp that it wasn’t primarily related to antisemitism, but to leftist anticolonialist ideology, hatred of the U.S. by proxy, and so on. While such things are factors, I’ve changed my mind about the importance of the role that Israel as a state of the Jews plays in the attention Israel gets, and I wrote a blog post for the Times of Israel about it.

In short, people are fascinated by Jews, after two thousand years of exile and oppression, having sovereignty and wielding collective military power. Many people are enthralled by it, which accounts for some of the attention. But many more around the world, especially in the Christian and Muslim world, are repulsed by it, for reasons that are ultimately antisemitic.

The relevant antisemitism is rarely Nazi-like right-wing antisemitism. Rather, it’s expecting Jews to behave in ways that conform to ideological expectations with roots in Christianity, Islam, and Marxism. As explained in the Times of Israel piece, the relevant ideologies have something in common, which is that they can’t abide Jews having a sovereign, militarily powerful state in Israel.

One point worth I thought I would highlight here: while Israel-haters like to go on and on about Israeli “hasbara” (public diplomacy, less charitably interpreted as propaganda), the ideologies I discuss are products in large part of much more intensive state-sponsored antisemitic campaigns run over the decades by the Vatican, Czarist Russia, Nazi Germany, the USSR, and various Arab and Muslim states. The USSR’s antisemitic propaganda campaign against Israel has had especially dramatic influence. Young leftists today repeat slogans from Soviet propaganda organs Izvestia and Pravda of fifty years ago without even being aware of their provenance.

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7/5/1867: Justice James Wayne dies.

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Brilliant column by Douthat:

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Millions of people around the world know the stirring words of the Declaration of Independence announcing that “all men are created equal” and that they have the rights to “Life, Liberty and the pursuit of Happiness.” But relatively few know that, among the grievances the Declaration enumerates as justification for renouncing allegiance to King George III is the following:

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….

This complaint against the King was aimed at a series of royal orders issued in  1772 and 1773, which forbade the colonies from naturalizing aliens, banned the passage of any laws facilitating that purpose, including laws promoting migration, and overrode a North Carolina law exempting immigrants from Europe from taxation for a period of four years.

It’s tempting dismiss this as just a disagreement over policy. But it  actually goes further than that, since it is one of the items on the list of “repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.”

The King’s efforts to restrict immigration to Britain’s American colonies were not just a flawed policy, the Declaration claims, but a step towards the “establishment of an absolute Tyranny.”

Nor was it merely a tyranny over the colonial governments’ supposed right to determine immigration policy for themselves. It was also a tyrannical action towards the would-be immigrants.

Many of the leaders of the American Revolution saw the new nation as a refuge for the oppressed of the world. In his famous General Orders to the Continental Army, issued on the occasion of the end of the Revolutionary War in 1783, George Washington stated that one of the reasons the United States was founded was to create “an Asylum for the poor and oppressed of all nations and religions.” He expressed similar views on other occasions, including writing to a group of newly arrived Irish immigrants that “[t]he bosom of America is open to receive not only the opulent & respectable Stranger, but the oppressed & persecuted of all Nations & Religions.”

Thomas Jefferson, the principal author of the Declaration, similarly wrote, in 1781, that “It [has] been the wise policy of these states to extend the protection of their laws to all those who should settle among them of whatever nation or religion they might be and to admit them to a participation of the benefits of civil and religious freedom.” Other leading Founders expressed similar sentiments, including James Madison and James Wilson, among others.

The idea of accepting immigrants without regard to their national origin and religion was an extension of the more general principle that the United States was founded on the basis of universal liberal principles, not ties of ancestry, culture, or faith.  This is what the Declaration refers to in the famous passage avowing that all men are created equal and have the rights to life, liberty, and the pursuit of happiness.

There can be no such liberty and equality if where people are allowed to live is limited by their parentage and place of birth. Just as the leaders of the Revolution rejected more traditional hereditary aristocracy, their principles were also at odds with what we might today call the hereditary aristocracy of citizenship, under which only those born to the right parents or in the right place have a right to live in the United States, while all others can be excluded for virtually any reason the government might come up with.

The Founders established a Constitution under which, Madison and most others argued, the federal government had no general power to exclude immigrants. When the Federalist Party pushed through the Alien and Sedition Acts of 1798, giving the president broad power to deport immigrants he deemed “dangerous,” Jefferson and Madison denounced the law as both unjust and unconstitutional. They and their allies mobilized such strong resistance to the Alien Friends Act that the federal government never actually managed to deport anyone under it.

When Jefferson became president in 1800, he allowed the Act to expire, and federal immigration policy remained almost completely free of restrictions until the enactment of racially motivated exclusionary laws targeting Chinese immigrants in the 1870s and 1880s. The successful resistance to the Alien Acts was a triumph for liberty and equality that deserves to be far better known than it currently is.

None of this proves that America’s founding generation was free of prejudices against immigrants. The Federalist Party, as noted, sought to use the Alien Friends Act to deport many immigrants, fearing that they might spread French revolutionary ideas to the United States and—perhaps even worse from the Federalist point of view –  support the rival Democratic-Republican Party.

Despite his defense of open immigration on many occasions, Thomas Jefferson wrote, in his 1782 Notes on Virginia, that America had reason to fear immigrants from “absolute monarchies,” because “[t]hey will bring with them the principles of the governments they leave, imbibed in their early youth; or, if able to throw them off, it will be in exchange for an unbounded licentiousness, passing, as is usual, from one extreme to another.” As with many later Americans who feared that immigrants would spread harmful political political values, Jefferson did not give sufficient weight to the reality that people fleeing oppressive regimes usually do so precisely because they abhor those governments, not because they want to recreate them elsewhere.

But even in that same passage, Jefferson rejected the idea of barring immigrants from oppressive governments, instead recognizing that “[i]f they come of themselves, they are entitled to all the rights of citizenship.” He merely  “doubt[ed] the expediency of inviting them by extraordinary encouragements.” Later, of course, Jefferson took a more favorable view of the political impact of immigrants—perhaps, in part, because many of them supported him and his party!

As on many other issues, particularly slavery, the Founders didn’t always live up to their own principles when it comes to immigration. The Federalist advocates of the Alien Acts obviously did not. Nor did Congress when it enacted the Naturalization Act of 1790, and limited eligibility for citizenship to those immigrants who were “free white person[s].” Black immigrants were not made eligible for citizenship until 1870. Explicit racial restrictions on naturalization were not fully ended until 1952.

Restrictions on naturalization did not amount to restrictions on immigration itself. Black  immigrants came to the United States in substantial numbers even when many of them were ineligible for  citizenship, beginning with numerous refugees from Haiti in the 1790s. Still, black immigrants in this era suffered severe discrimination, as did native-born free African-Americans (to say nothing of the millions of slaves).

But despite these unjust limitations, the principles of the Declaration of Independence did lead to the establishment of a nation that, for the first century of its history, had very few limitations on immigration, and thus became a refuge for millions of people fleeing poverty and tyranny.

Washington’s vision of a refuge for “the oppressed & persecuted of all Nations & Religions” was never fully achieved. But the early United States did realize it to a astonishingly impressive degree. In some important ways, the early republic was actually more enlightened on these matters than we are today. Our immigration policies bar the vast majority of those seeking refuge from oppression, and even include such perversions as barring escaped slaves on the grounds that the forced labor they performed for terrorist organizations qualifies as “material support for terrorism” rendering them ineligible or asylum.

Jefferson and Washington were not far from the only ones who saw a connection between openness to immigration and America’s founding principles of liberty and equality. The great African-American abolitionist Frederick Douglass made much the same point in an 1869 speech, in which he compared immigration restrictions to racial discrimination, and argued that America must be a “composite nation” open to to people of all races and cultures who wished to settle there.

 

 

 

 

 

 

 

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