How the Constitution shapes immigration today

A new book argues that the Constitution’s wording has had a long-term impact on migration to the country.

Over the past year, US cities and states have taken action against migrants in ways that some pundits have called “un-American”—from legislation that would ban those who are citizens of certain countries from purchasing property in Texas to buying bus tickets and chartering planes to move migrants to other locations.

“The idea of states’ rights, despite its genealogy… is not inherently reactionary. It depends on who uses it and for what purpose.”

But as New York University historian Kevin Kenny notes, the foundation for these maneuvers, which have been both criticized as “dehumanizing” and defended as necessary, was, in fact, made in America—back in the 18th and 19th centuries, with the adoption of the Constitution and its later amendments. And, like many of today’s thorniest political issues, the debate about immigration policy has connections to the nation’s initial commitment to the institution of slavery.

“No state can determine, anymore, who can enter the United States and who can be excluded,” explains Kenny, author of the newly released The Problem of Immigration in a Slaveholding Republic (Oxford University Press, 2023) and director of the university’s Glucksman Ireland House. “But states, towns, and cities can adopt policies regulating the lives of immigrants after they get here. This question of what I call ‘immigration federalism,’ with power divided between the center and the localities, is still playing out today.”

With immigration and migration becoming increasingly significant as both a domestic and global matter—nearly 900 million people worldwide sought to migrate in 2021, according to a Gallup poll—Kenny speaks here about what the Constitution says on these matters and how a “twisted reading” of one of its amendments had been used to exclude the entry of some to this country:

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