The Right to Migrate

Since the late-19th century, the Supreme Court has insisted that the preservation of national sovereignty requires a constitutional chasm between immigration law and ordinary law. If the Court is to bridge that chasm, it must reimagine the long-standing premise of the federal immigration power that the presence of noncitizens in U.S. territory menaces the nation’s sovereignty and security. This Article contributes to that reimagining by chronicling a compelling alternative worldview with a venerable historical pedigree—that of a quintessentially American right to migrate. During the Founding Era, American statesmen described the impoverished subjects of Europe’s monarchies as protagonists in an unfolding world-historical drama of human liberation and enlightenment, shaking off the servitude and privations of the Old World and reinventing themselves as free, equal, and independent republican citizens. Although the scope of that vision originally was limited to Europe, it nevertheless seeded a field of American national identity that eventually would yield a genuinely universal (though ultimately unconsummated) right to migrate to the United States and be incorporated within the American political community. Following the Civil War, leading congressional architects of Reconstruction sought to expand the right to migrate beyond Europe to an emerging global theater of cosmopolitan culture, commerce, and labor. To the liberal internationalists of the postbellum era, migration was not a discrete, constitutionally exceptional subject of federal policy-making; rather, it was integral to the monumental post-Civil War project of renovating and reinvigorating American liberty, equality, and citizenship. Theirs was a worldview in which federal sovereignty and citizenship were paramount, yet the border between citizen and alien was both porous and transitory, and in which immigrants were regarded as “Americans in waiting.” That worldview serves as a forceful rebuttal to the Court’s presumption that preserving national sovereignty and security requires that immigration law occupy a constitutional world apart