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Article One Section 9 of United States Constitution contains a provision, as a concession to the South, that the slave trade may not be banned by Congress until 1808. But the language of the provision seems odd to me:

"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."

On a plain reading, it seems like it would allow individual states not just to import slaves, but to carry out their own immigration policy, allowing anyone at all, even free people, to come into the country.

  • My question is, why would the language be so broad?

  • Is that really the meaning, or am I misinterpreting it?

  • You can look at the Constitution yourself here: archives.gov/exhibits/charters/constitution_transcript.html I didn't cut off the quote at the beginning, this is the first sentence of Article One Section 9. – Keshav Srinivasan Dec 21 '13 at 2:54
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    And grammatically, the "such" doesn't have an antecedent. It's part of a result clause; back then they used to break up "such as" into two parts. It's like saying "America has had such Presidents as George Washington and Abraham Lincoln." It's just an old-fashioned way of saying "America has had Presidents such as George Washington and Abraham Lincoln." – Keshav Srinivasan Dec 21 '13 at 2:57
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You're correct, the language does allow for states to create their own immigration policy. Up until around the Civil War the states largely carried out their own immigration policy, because of a lack of any federal guidance on the issue. (See New York v Miln for an example of such a policy in use - http://www.oyez.org/cases/1792-1850/1837/1837_0).

Today, federal policies passed by Congress have regulated immigration so much that there is no wiggle room for states to carry out their own immigration policies anymore. (Supremacy Clause overrules the states). However, it's a cool nugget of history.

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My question is, why would the language be so broad?

The Framers of the Constitution left slavery open in order to get the Constitution ratified. James Madison argued against the possibility of legal slavery; while other delegates from southern states argued for legal protection. Eventually they ended on a compromise: states could handle their own immigration and slavery policies, but the federal Congress could regulate naval trade and laws could be passed with a simple majority - not 2/3.

cit.: Johnson and Cromwell, American National Government. 1946.

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