ArtI.S8.C4.1.2.2 Constitutional Convention and Naturalization

Article I, Section 8, Clause 4:

[The Congress shall have Power . . . ] To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; . . .

Following the American Revolution, individual states established their own policies on the naturalization of foreign-born nationals.1 While some like Pennsylvania had fairly liberal naturalization requirements,2 others like Virginia had more restrictive laws that limited naturalization to aliens who resided in the state for longer periods, who were “free white persons,” or who were not otherwise subject to caps on citizenship admissions.3 Other states, including South Carolina, only conferred citizenship through private legislation rather than through any naturalization law.4

Despite these differences, the Articles of Confederation, ratified in 1781, provided that “the free inhabitants” of each state had the right to travel freely to any other state, and were “entitled to all privileges and immunities of free citizens in the several states.” 5 Thus, a foreign national who became a citizen in one state could obtain citizenship rights in another state simply by relocating and establishing residence in that state.6 In essence, the combination of interstate travel and competing state citizenship laws established a form of national citizenship that signaled the future establishment of a constitutional standard for obtaining U.S. citizenship.7

The lack of consistency between state citizenship laws led some delegates to the Constitutional Convention to propose a uniform naturalization policy during the debates over the United States Constitution. Charles Pinckney, who served as a delegate from South Carolina, noted that the states had widely divergent citizenship laws, and argued that, “[t]o render this power generally useful it must be placed in the Union, where alone it can be equally exercised.” 8 Alexander Hamilton, who served as a delegate from New York, wrote in the Federalist No. 32 that naturalization policy should be an exclusive federal power “because if each State had power to prescribe a distinct rule there could not be [a] uniform rule.” 9

In addition, Virginia delegate James Madison commented in the Federalist No. 42 that “[t]he dissimilarity in the rules [of] naturalization, has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions.” 10 He noted, for example, that an alien who acquired citizenship in a state with lenient naturalization requirements (such as a short period of residence) could obtain citizenship rights in another state even if he did not meet the more restrictive naturalization policies of that state, given the “privileges and immunities of free citizens” conferred by the Articles of Confederation.11 Consequently, Madison warned, “the law of one State [would be] preposterously rendered paramount to the law of another, within the jurisdiction of the other.” 12

Ultimately, there was a consensus at the Convention that there should be a federal naturalization power in the Constitution.13 Originally, the proposed language of the text relating to naturalization simply authorized Congress “to regulate naturalization.” 14 Then, a revised draft appeared in the New Jersey Plan, which had been introduced by delegate William Paterson, and declared that “the rule for naturalization ought to be the same in every State.” 15 Following some further modification, the Convention adopted the final draft of the Naturalization Clause, which authorized Congress “[t]o establish an uniform rule of naturalization. . . throughout the United States.” 16

See James E. Pfander & Theresa R. Wardon, Reclaiming the Immigration Constitution of the Early Republic: Prospectivity, Uniformity, and Transparency, 96 Va. L. Rev. 359, 383 (2010) (noting that “naturalization policy fell to the states and they responded with a profusion of approaches meant to attract new immigrants from Europe” ); Smith v. Turner, 48 U.S. (7 How.) 283, 440 (1849) (Grier, J., concurring) ( “During the Confederation, the States passed naturalization laws for themselves, respectively, in which there was great want of uniformity . . . .” ). back
For example, under Pennsylvania law, foreign nationals of “good character” could acquire the rights of citizenship within two years of their arrival in the state. See Pfander & Wardon, supra note 1, at 383. back
Pfander & Wardon, supra note 1, at 383 (describing naturalization laws of southern states). back
Pfander & Wardon, supra note 1, at 383 (describing the policies of South Carolina and the New England states). back
Articles of Confederation of 1781, art. IV, para. 1. back
Arizona v. United States, 567 U.S. 387, 418 (2012) (Scalia, J., concurring in part and dissenting in part) ( “This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another.” ); see also Pfander & Wardon, supra note 1, at 384 ( “It effectively permitted an alien to seek naturalization in a state with permissive naturalization practices and then move to a state with tighter restrictions, and still be entitled to all the incumbent rights of naturalized citizens in the second state.” ); Charles Pinckney, Observations on the Plan of Government Submitted to The Federal Convention, in Philadelphia, on the 28th of May, 1787, reprinted in 2 The Records of the Federal Convention of 1787, at 120 (Max Farrand ed., 1911) ( “At present the citizens of one State, are entitled to the privileges of citizens in every State. Hence it follows, that a foreigner, as soon as he is admitted to the rights of citizenship in one, becomes entitled to them in all.” ). back
See Pfander & Wardon, supra note 1, at 385. back
See Pinckney, supra note 6. back
The Federalist No. 32 (Alexander Hamilton). back
The Federalist No. 42 (James Madison). back
Id. back
Id. back
See Pfander & Wardon, supra note 1, at 385 ( “Widespread acceptance of the argument for a national standard made the transfer of naturalization power to the new federal government one of the least controversial features of the new Constitution.” ). back
See Pfander & Wardon, supra note 1, at 389. back
James Madison, Notes of the Constitutional Federal Convention, reprinted in 1 The Records of the Federal Convention of 1787, at 245 (Max Farrand ed., 1911). back
See U.S. Const. art. I, § 8, cl. 4; Pfander & Wardon, supra note 1 at 386, 389 (describing process by which language of naturalization clause was adopted). back