Free Migration as an American Principle

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The evolution of non-discrimination policies in the United States is uniquely convoluted. To enter into a dialogue about such an issue means to bring the issues of race, sexual and gender identity, religious freedom, states rights, and phrasing issues; namely, the legal nuances of what it means to “not explicitly prohibit” workplace discrimination, or the inconsistencies of “private section discretion” when it comes to discrimination. Many subjugated groups are in the process of claiming their rights to anti-discrimination protections, while others have enjoyed the right since the writing of the Constitution, as is the case for those belonging to religious groups. One marginalized group, the undocumented, have been ensconced in the shadows of a lack of legal protection based on legal status. In the consideration of how undocumented migrants ought to be managed, we must consider the role of free migration during the foundational years of the United States in the same way we consider free exercise during the same period.

The Constitution is unmistakably clear about maintaining the free exercise of religion. This makes sense, as a primary reason for the mass exodus of British Protestants from Europe to North America was to escape religious persecution under the rule of the Church of England. As such, codifying religious freedom during the composition of the Constitution of the fledgling America would have been of the utmost importance to the founders. Indeed, in reflecting upon the creation of the Constitution to the Baltimore Baptists in 1808, Thomas Jefferson mused, “In our early struggles for liberty, religious freedom could not fail to become a primary object.” Thus, the political climate surrounding the founding of the United States already included a dialogue about religious freedom.

Arguably, however, the right to free migration was as important a right as religion to the founding fathers. One potential reason for its absence in American founding documents is simply the way migration was understood at the time; “immigration” as a political issue did not exist in the same context as in modernity, and certainly, the idea of legislating who to exclude and how would not have even occurred to the founders. In the Naturalization Act of 1790, the first American legislative attempt to address immigration, citizenship simply required “good character,” determined by two years of residence prior to applying for citizenship (the other requirements set forth by this Act are addressed later). Free migration was just part of the eighteenth century world. In a letter to a Dutch priest in 1788, George Washington wrote, “I had always hoped that this land might become a safe and agreeable Asylum to the virtuous and persecuted part of mankind, to whatever nation they might belong.” Considering the recent political maltreatment of the child migrants from Central America, such a sentiment from the father of the United States certainly seems to have been lost.

Of course, it is important to address the reasons why free migration was treated the way it was in the 1700s, and why it has become reframed throughout history. One important issue, especially for the fledgling United States, was the necessity of population growth. Early America could not have afforded to be exclusionary, as it simply needed sheer numbers to increase its populace (and of course, its armies). In addition, one could argue that eighteenth century America was even more exclusionary than it is now; in the Naturalization Act of 1790, it was determined that only white free persons qualified for citizenship. This is more a reflection of the times, however; to assert that we ought to pursue exclusionary immigration policy because of the requirements laid out in the Naturalization Act of 1790 is akin to arguing that slavery ought to exist because of its legality in the time of the founders. It is important to consider context when identifying founding tenets of American discrimination practices today.

The religious enjoy the codification of their rights in the Constitution because of the political climate and motivations that existed at the time of its writing. And yet without the capability of our predecessors to escape persecution by fleeing to a new land, such codification would not have occurred in the first place. Considering roots of the founding of the United States – that is, as a haven for the persecuted – is it not wholly American to continue such an ethic regarding the persecuted in modernity? Echoing Washington’s sentiment above, what other prerequisites should exist for American citizenship but to be virtuous and persecuted? The most dangerous psychological effect that can occur in the consideration of the issue of illegal immigration is the reframing of “human rights” into “citizen rights,” as often happens when citizenship itself is reframed in one’s mind from a privilege into an entitlement. Because a person crosses a border does not mean he has sacrificed his status as a human being or his rights, as internationally standardized in the United Nations Declaration of Human Rights. These include but are not limited to the right not to be subjected to arbitrary arrest, detention or exile; workplace rights such as equal pay, unionization, and a just and favorable work environment; and entitlement to equal protection under the law, among others. And although citizenship denotes particular rights and privileges, non-citizenship does not equate the surrender of the most basic rights that all human beings possess.

The denial of undocumented immigrants their basic human rights, as is the case when migrants are held indefinitely in detention centers, or are eyeballed by law enforcement for “looking” illegal, will only continue as long as discrimination based on legal status is normalized. It would be unfathomable and illegal to deny an individual the right to unionize or claim equal pay based on race or ethnicity, but is a rampant discriminatory practice when it is based on legal status. And although the right to free migration is not constitutional as is the free exercise of religion, the importance of harboring those fleeing hardship rings clear in the messages of our founding fathers. If discrimination based upon a particular characteristic exists, regardless of on what side of the border it occurs, then we ought to attempt to extend protection, as is our human — and American — obligation.

Jefferson quote from: Ford, P. (1892-1899). The Writings of Thomas Jefferson. Lipscomb & Bergh (Ed.). Washington, D.C.

Washington quote from: Lengel, E (2008). Letter to Francis Van der Kemp, 27 September 1788. The Papers of George Washington. University of Virginia.

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