Police the Border: Justice Field on Immigration as a Police Power

Abstract

Police the Border: Justice Field on Immigration as a Police Power ADAM CARRINGTON Many in our political discourse celebrate America as “a nation of immigrants.” Yet who may immigrate to the United States is a subject of recurring and contentious debate. Legislation in 1986 sought to curb future illegal immigration while legalizing certain current residents.1 Nearly two decades before that, the Immigration Reform and Control Act of 1965 greatly liberalized immigration policy, lifting severe restrictions on move­ ment from places such as Asia and Eastern Europe. Many such restrictions dated back as far as the late nineteenth century, a period of increasing restriction culminating in the Johnson-Reed Act of 1924.2 In these various phases ofimmigration policy, three important questions continuously emerged. What pur­ poses should immigration policy pursue? Moreover, who may pursue such purposes within the American system of federalism— the national government, the states, or both? Finally, how far does this power of govern­ ment extend within the domestic/foreign policy divide? The Supreme Court’s contribution to this debate also extended back to the latter halfof the nineteenth century. Here, the Court first addressed immigration policy’s purposes as well as which government entities may pursue them. This article examines how one of the period’s most influential Justices— Stephen J. Field—answered these questions, drawing on his opinions in some of the first Court cases to review restrictive immigration legislation. Justice Field answered these questions in the context of declaring immi­ gration regulation to be a police power. In so doing, Field uniquely stated immigration both to be an exclusively national police power and one whose purpose lay in protecting individual rights. He further refined these claims by giving significant attention to immigration’s place along the divide between domestic and foreign policy, arguing that the national government only owed rights’ protection to its own citizens and to those non-citizens residing within United States’ jurisdiction. JUSTICE FIELD ON IMMIGRATION AS A POLICE POWER 21 Justice Field was particularly suited for examining these matters. Appointed by President Abraham Lincoln in 1863, Field served on the nation’s highest bench for thirty-four years, retiring in December of 1897. He is best known as one of the earliest articulators of Fourteenth Amendment “sub­ stantive due process” and “liberty of con­ tract”3 as they related to state police power legislation. These judicial concepts, which Field most notably articulated through dis­ senting opinions in the Slaughterhouse Cases and Munn v. Illinois, gained a consistent majority on the Court near the end of Field’s tenure—a majority that lasted until the New Deal “Switch in Time” in 1937. In addition to his well-known work on the Fourteenth Amendment and police power, Field also took a leading role in the Court’s first considerations of restrictive immigration legislation. These laws reacted to increased Chinese immigration to California, Field’s home state and the epicenter of his circuit­ riding duties. Between 1884 and 1893, Field wrote three important Supreme Court opin­ ions in these cases, articulating his distinct understanding of immigration as a police power whose purpose lay in protecting rights and whose exercise rested with the national government wherever it held sovereign jurisdiction. This article presents a new angle of investigation on these matters. Much schol­ arship exists on Justice Field’s police power jurisprudence as it pertained to the Fourteenth Amendment. A few scholars also have addressed Field’s immigration opinions.4 This article, however, links the two by considering Field’s claim that immigration was a form of a national police power. In so doing, this work also provides a new perspective on Field’s understanding of police power in general, both in its purpose ofprotecting individual rights and its scope as a power of the national—not just the state— governments.5 Looking to Field, we first articulate his general conception of police power. Unique on the Court at his time, Field was one of the first Justices to explicitly ground police power in the protection of individual rights instead of merely federal­ ism. He was also the first Justice to discuss the concept of a national police power, doing so in several...