The US Borders Were Never Open

Immigration has been one of President Trump’s signature issues as evinced by his obsession with the border.  It may make for good fodder to rev up his base, but he’s wrong about the US border being open now or historically. Our borders were never truly open.

Here he is in 2014, before he was elected, tweeting about the US’ allegedly open borders.

Here he is more recently after he was elected Tweeter-in-Chief:

In the first tweet, Trump implies that US border policy is only about restriction. It’s a myopic way to approach immigration policy; a well regulated policy allows those who need to come to enter (tourism, foreign students, Toronto Bluejays, foreign opera singers) and keeps the unwanted out. In the second tweet, he suggests Democrats want open borders. Putting aside the fact that no pro-immigrant group or politician has called for open borders, the idea that the US border was open at some point or now is just wrong.

The borders weren’t even open back in the colonial period. In that period, there were already in place both policies to attract desirable migrants and to screen undesirables out. One can argue about whether colonial authorities had enough administrative capacity to examine and police every ship that landed with migrants, but to say that one could simply show up in a colony and expect to be admitted, is wrong

Given the urgent need for labor and people to populate and work the land, the British North American colonies had extensive inducements to attract able and willing persons to journey to the British mainland colonies.  The main incentives were free land, along with easy and fast naturalization. Naturalization was especially important becuase it placed migrants on equal footing, for the most part, with British subjects allowing them to purchase land and also to pass it along to heirs.

Land, through what was known as the headright system, and money was also given to those people of wealth who would pay for the passage of others even if they themselves didn’t migrate, land was distributed as compensation for each person imported.

Life in the colonies was difficult and dangerous, filled with the threats of a harsh wilderness, diseases that often proved fatal, and attacks from Indians who already occupied the same land.  Few hardy souls made the voyage willingly given these daunting challenges, but the bigger problem was cost; the price of passage to the colonies from England and other parts of Europe was prohibitive.

The colonies soon discovered there weren’t enough voluntary migrants arriving and they turned to the importation of indentured servants and then, after 1680, the importation of large numbers of African slaves. As Aaron Fogleman and others have demonstrated, initially, the number of European indentured servants and other types of bound labor greatly exceeded the number of voluntary migrants.

Britain soon hit upon the idea to empty its prisons and poor houses, thereby shipping off petty thieves, the poor, and even convicts, the final group known as “His majesty’s 7 year passengers” denoting their term of indenture in the colonies.

Having to rely heavily on imported labor, colonial laws “most elaborate role” as described by Christopher Tomlins’ Freedom Bound, was to regulate bound labor. Among these policies was a desire to protect those who had purchased bound labor from unlucky purchases. There were bonds and head taxes in place, aimed at the ship master who carried the person to the colonies, to discourage from importing persons who were not self-sustaining, such as the disabled, insane, or anyone who would become an economic burden on their communities, or a “public charge.” (Trump’s recent policy changes to prevent poor immigrants who tap public benefits from receiving a green cards have its origins in these laws put in place in the colonial period.)

Other undesirables were the Irish, Quakers, and convicts, all groups subject in the colonial period to taxes. Numerically the largest and also the most despised group was convicts. When the Crown vetoed repeatedly colonies’ attempts to ban convicts landing, colonies turned to hitting convicts with high duties, in part to warn their buyers that the buyer had purchased an indentured servant that was a convict (who were more prone to abscond than non-convict servants).

At the close of the colonial period, and heading in the Revolutionary War period, there were already in place extensive migration laws to recruit “good” migrants, and screen out the “bad.” These policies were simply replicated and continued in the early American republic.

The policies, virtually all of them pioneered in the colonial period, were beefed up by the states who ran immigration policy until circa 1892, when the national government took over. A small but hardy band of historians (and me, a political scientist) have been screaming from the rooftops for the last few years that it is patently false that the US borders were open prior to the feds taking over in 1882 with the Chinese Exclusion Act.

States ran immigration policy virtually exclusively from the founding until late into the 19 century. Historian Brendan O’Malley wrote an excellent dissertation describing the policies of New York City toward immigrants, most of those policies were very benign and welcoming of immigrants.

In contrast, historian Hidetaka Hirota’s recent award winning book, Expelling the Poor–Atlantic States and the Nineteenth Century Origins of Immigration Policy, traces the far more punitive approach to screening immigrants taken by Massachusetts, which aggressively sought to deter poor immigrants.  He demonstrates that states like Massachusetts had the ability to deport people, yes, a state, deporting people.

Similarly, historian and legal scholar Kunal Parker’s book, Making Foreigners– Immigration and Citizenship Law in America, 1600-2000, devotes half his book to antebellum state migration controls.

Never one to miss out on the party, I, a political scientist, am writing a book on antebellum immigration policies and slavery. In this article, a version of the book manuscript chapter, I trace the reasons why the federal government didn’t and indeed couldn’t take control of immigration policy from the states until 1892. In short, the southern states jealously guarded policies about who to admit or remove and the conditions under which they could pass through or remain in their geographical territory because of the need to preserve slavery.  There was no way the slave states would have acceded to a federal power to admit and deport people.

Who cares if and when US borders were open? If politically one understood that the borders were never really open, it makes calls to completely seal the border appear unrealistic, which is what they are.

But there’s  a bigger political implication. Trump is strongly implying that only the federal government is authorized to carry out immigration policy. If one is ignorant of the entire colonial period all the way up to the late nineteenth century when local governments, exclusively ran immigration policy, one may conclude that state run immigration policy is patently illegitimate and maybe punitive (if one recalls Arizona’s infamous SB 1070.) But there are 50 states, not just AZ, and the US is a federal system.

Having a federal system of government ,where the national government and subnational units share power and authority, is a double-edged sword. Right now, in the age of Trump’s relentless anti-immigrant crackdown, states have had some success shielding vulnerable immigrants from the Administration’s punitive policies.


I am the Herbert Kurz Chair in Constitutional Rights at CUNY Brooklyn College. I will be blogging about US immigration history, policy and US constitutional development.

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