The Migration or Importation Clause

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

—Judge Patrick J. Bumatay

Introduction

To unite under a single Constitution, our Founding generation had to reach a compromise over the Atlantic slave trade. Northern states increasingly viewed the practice as unacceptable, while Southern economies relied on it. The eventual compromise—a twenty-year period during which Congress could not ban the trade—was met with criticism and grudging acceptance. Congress banned the slave trade on the first day the Constitution permitted, but the Slave Trade Clause continued to shape the debate over slavery, citizenship, and federal power.

History Before 1787

Around the time of the Founding, opposition to the Atlantic slave trade grew in both Europe and the Americas. In Somerset v. Stewart (1772), Lord Mansfield of the English Court of King’s Bench held that a slave on English soil had the right not to be forcibly removed from the country and sent abroad for sale.¹ Across the ocean, Rhode Island and Connecticut banned the importation of slaves in 1774, and other future states later followed suit.² Thomas Jefferson penned a draft of the Declaration of Independence that condemned the slave trade as “execrable Commerce” and slavery as a “cruel war against nature itself.”³ Even so, these clauses were ultimately dropped from the final document. Against this backdrop of growing opposition to slavery and the slave trade, the Framers weighed the nascent federal government’s authority to regulate the importation of slaves.

The Constitutional Convention

During the Constitutional Convention, the first debate over slavery concerned representation and what became the Three-Fifths Clause.⁴ (See Essay No. 9.) The second debate arose when southern delegates objected to an unrestricted congressional power to regulate foreign and interstate commerce. (See Essay Nos. 43 and 44.) They warned that this power could restrict or outlaw the slave trade.⁵ Charles Cotesworth Pinckney of South Carolina, for example, stated flatly that “South Carolina can never receive the plan if it prohibits the slave trade.”⁶ This debate yielded the Migration or Importation Clause, which stands as the first independent restraint on congressional powers in the Constitution. It appears even before the restriction on the power to suspend the writ of habeas corpus.

The Committee of Detail, which was chaired by John Rutledge of South Carolina, proposed the Migration or Importation Clause. This provision dealt with trade issues as well as those relating to slavery. The draft permanently forbade Congress from outlawing or taxing the “emigration or Importation of such persons.”⁷ “Migration” generally referred to the movement of free persons and slaves, while “importation” would have referred only to slaves.⁸ Yet even at this early juncture in the Convention, the delegates avoided the word “slave” and instead used “such persons.”⁹ Later in the Convention, James Madison of Virginia argued that it was “wrong to admit in the Constitution the idea that there could be property in men.”¹⁰ Several delegates strongly objected to the proposal, including Gouverneur Morris of Pennsylvania, who delivered one of the Convention’s most spirited denunciations of slavery as a “nefarious institution” and “the curse of heaven.”¹¹

When the issue came up for a vote, the southern delegates were sharply divided. George Mason of Virginia condemned the “infernal traffic,”¹² but Luther Martin of Maryland saw the restriction on Congress’s power over the slave trade as “inconsistent with the principles of the Revolution and dishonorable to the American character.”¹³ Delegates from Georgia and South Carolina announced that they would not support the Constitution without the restriction. Charles Cotesworth Pinckney argued that failing to include the clause would trigger “an exclusion of South Carolina from the Union.”¹⁴

The serious split was referred to a Committee of Eleven, which was chaired by William Livingston of New Jersey. The Committee rewrote the clause to focus exclusively on Congress’s power to regulate the migration or importation of slaves. It recognized a congressional power over the slave trade but recommended that it be restricted for twelve years while allowing a tax on the importation of slaves.¹⁵ This language was a significant change from the Committee of Detail’s original proposal.

Southern delegates accepted the new arrangement but extended the time period to twenty years, from 1800 to 1808.¹⁶ Madison argued that the twenty-year exemption was “dishonorable” and would “produce all the mischief that can be apprehended from the liberty to import slaves.”¹⁷ Roger Sherman of Connecticut aptly summarized the necessity for the compromise: “[I]t was better to let the [Southern] States import slaves than to part with them.”¹⁸ The Migration or Importation Clause with the twenty-year period was adopted by the Convention.

The Ratification Debates

During the ratification debates, the Migration or Importation Clause was the subject of significant debate. Opponents of the slave trade denounced the clause as a major concession to slavery interests but still grudgingly accepted it as a necessary and prudent compromise. In Federalist No. 42, Madison declared that it was “a great point gained in favor of humanity that a period of twenty years may terminate for ever, within these states” an “unnatural traffic” that was “the barbarism of modern policy.”¹⁹ The Anti-Federalists, however, seized upon the clause as an unacceptable endorsement of slavery. A Federal Republican of Pennsylvania wrote that “[t]o prohibit the importation of slaves is not to abolish slavery.”²⁰

In the North Carolina ratifying convention, James Iredell, who would later serve on the Supreme Court, said that he wished the “great cruelties” of the slave trade would soon be abolished, but “we often wish for things which are not attainable.” He said “[i]t was the wish of a great majority of the Convention to put an end to the trade immediately; but the states of South Carolina and Georgia would not agree to it.”²¹

Some members of the South Carolina House of Representatives viewed the clause as a delayed attack on their “only natural resource.”²² Charles Cotesworth Pinckney defended the Constitution’s protections of slavery, arguing that “we have made the best terms for the security of this species of property it was in our power to make.” Pinckney added, “We would have made better if we could; but, on the whole, I do not think them bad.”²³

Others were more optimistic. James Wilson of Pennsylvania, for example, claimed that the Interstate and Foreign Commerce Clauses gave Congress the power to regulate, or prohibit, both the interstate and the foreign slave trade after the twenty-year period had lapsed: “[Y]et the lapse of a few years, and Congress will have power to exterminate slavery from within our borders.”²⁴ In Federalist No. 54, James Madison found significance in the fact that the words “slave” and “slavery” were not used in the Constitution of 1787. Instead, the Framers used the word “person” rather than “property.” This would ensure that a slave would be regarded “as a moral person, not as a mere article of property.”²⁵

Early Practice

At the Constitutional Convention, southern delegates had hoped opposition to the slave trade would weaken with time, but the practical effect of the Migration or Importation Clause was to create a growing expectation of federal legislation against the practice. The Slave Trade Act of 1794 prohibited any citizen or resident of the United States from carrying on any trade or traffic in slaves from the United States to any foreign country.²⁶ As a result, U.S. citizens were prohibited from engaging in the transatlantic slave trade.²⁷ The Slave Trade Act of 1800 further prohibited Americans from investing in the slave trade or transporting slaves from one foreign country to another foreign country.²⁸ In 1807, Congress passed, and President Jefferson signed into law, legislation to officially prohibit the slave trade, which became effective on January 1, 1808.²⁹

Which enumerated power authorized Congress to prohibit the slave trade? Justice Joseph Story posited that “the power to regulate commerce applies . . . to the regulation of vessels employed in transporting men.”³⁰ But it was not clear that the power to “regulate” includes the power to prohibit altogether. Abraham Lincoln, for example, did not claim that congressional power to regulate commerce could be used to restrict interstate commerce in slaves. In his first inaugural address, he said, “May Congress prohibit slavery in the Territories? The Constitution does not expressly say. Must Congress protect slavery in the Territories? The Constitution does not expressly say.”³¹

Judicial Precedent

After 1808, the Migration or Importation Clause still had an effect on Supreme Court opinions. Groves v. Slaughter (1841) avoided deciding whether slaves were articles of commerce for purposes of the Commerce Clause.³² Smith v. Turner (1849) ruled that “migration” and “importation” referred to immigrants and slaves, respectively, as distinct classes of people.³³ As a result, the Migration or Importation clause would buttress Congress’s exclusive power over immigration. In Dred Scott v. Sandford (1857), Chief Justice Roger B. Taney pointed to the Migration or Importation Clause, along with the Fugitive Slave Clause, as evidence that persons of African descent were not intended to be accorded citizenship.³⁴ Even so, as Justice Benjamin Robbins Curtis observed in dissent, free blacks were citizens in a number of northern states and had voted to ratify the new Constitution.³⁵ Moreover, modern observers agree that those clauses did not address the question of citizenship at all.

Open Questions

• In 1788, what exactly was the difference between “migration” and “importation”?³⁶
• Even after 1808, does the Migration or Importation Clause grant Congress an affirmative enumerated power to restrict immigration?³⁷
• Does a state’s power to “admit” “such Persons” confer a parallel power to deny persons entry into its territory?

1. 98 Eng. Rep. 499 (K.B. 1772). ↩︎
2. An Act for Prohibiting the Importation of Negroes, Rhode Island General Assembly (June 1774); An Act for Prohibiting the Importation of Indian, Negro or Molatto Slaves, Connecticut General Assembly (1774). ↩︎
3. 1 The Papers of Thomas Jefferson 243–47 (Julian P. Boyd ed., 1950), https://perma.cc/89TT-76TX. ↩︎
4. 1 Farrand’s 205–06. ↩︎
5. 2 Farrand’s 220, 364, 369. ↩︎
6. Id. at 364 ↩︎
7. Id. at 169. ↩︎
8. 4 Elliot’s 100–102. ↩︎
9. 2 Farrand’s 168–69. ↩︎
10. Id. at 417. ↩︎
11. 1 Farrand’s 221. ↩︎
12. 2 Farrand’s 370. ↩︎
13. Id. at 364. ↩︎
14. Id. at 372. ↩︎
15. Id. at 396. ↩︎
16. Id. at 415. ↩︎
17. Id. ↩︎
18. Id. at 374. ↩︎
19. Federalist No. 42 (Madison). ↩︎
20. Storing 3.6.22. ↩︎
21. 4 Elliot’s 100. ↩︎
22. Id. at 273. ↩︎
23. Id. at 286. ↩︎
24. 2 Elliot’s 484. ↩︎
25. Federalist No. 54 (Madison). ↩︎
26. 1 Stat. 347–49. ↩︎
27. Michael Daly Hawkins, John Quincy Adams and the Antebellum Maritime Slave Trade: The Politics of Slavery and the Slavery of Politics, 25 Okla. City U.L. Rev. 1, 7–8 (2000). ↩︎
28. An Act to Prohibit the Carrying on the Slave Trade from the United States to any Foreign Place or Country, Pub. L. 6-51 (1800). ↩︎
29. An Act to Prohibit the Importation of Slaves, 2 Stat. 426 (1807). ↩︎
30. 3 Story’s Commentaries § 1331. ↩︎
31. Lincoln’s First Inaugural Address (Mar. 4, 1861), https://perma.cc/P7CC-4J5U. ↩︎
32. 40 U.S. 449, 464 (1841). ↩︎
33. 48 U.S. 283, 307 (1849). ↩︎
34. 60 U.S. 393, 411, 536 (1857). ↩︎
35. Id. at 572–73 (Curtis, J., dissenting). ↩︎
36. Robert G. Natelson, The Power to Restrict Immigration and the Original Meaning of the Constitution’s Define and Punish Clause, 11 Brit. J. Am. Legal Stud. 209, 211 (2022). ↩︎
37. Geoffrey Heeren, Immigration Law and Slavery: Rethinking the Migration or Importation Clause, 2023 Wisc. L. Rev. 1125 (2023). ↩︎