Settlers and Immigrants in the Formation of American Law

This paper argues that the early American republic is best understood as a constitutional experiment in “settler empire,” and that related migration policies played a central role in shaping collective identity and structures of authority. Initial colonists, along with their 19th century descendants, viewed society as grounded in an ideal of freedom that emphasized continuous popular mobilization and direct economic and political decision-making. However, many settlers believed that this ideal required Indian dispossession and the coercive use of dependent groups, most prominently slaves, in order to ensure that they themselves had access to property and did not have to engage in menial but essential forms of work. Crucially, settlers recognized that in order to sustain such a project of republican freedom and territorial conquest, they would need new migrants beyond the flow of English colonists. This promoted strong commitments to open immigration – but only from ethnically appropriate communities – as a central engine of settler development and expansion. Thus, although we often think of immigration and settlerism as competing national identities, I contend that for centuries the idea of the United States as a European immigrant nation – as well as the constitutional structures supporting that vision – was directly bound to settler needs and institutions