The University Libraries' recent Constitution Day program covered a topic mentioned only obliquely in the document itself: immigration. "Nowhere in the Constitution does it say Congress can legislate immigration," averred immigration attorney Sarah Rich. Yet legislate it does, with the courts as arbiter, making immigration a worthy topic for the second annual Constitution Day Forum on September 17, co-sponsored by the libraries and the Center for Mason Legacies (CML). Like last year's inaugural event, on executive power, the talk brought scholars of history and political science into conversation with a practicing lawyer to examine a subject in context, policy and practice.
In addition to Rich, a senior attorney at non-profit Democracy Forward, the speakers were Krystyn Moon, professor of History and American Studies at the University of Mary Washington, and Schar School of Policy and Government Professor Guadalupe Correa-Cabrera. The panel was moderated by Lisa Breglia, Senior Associate Dean for Undergraduate Academic Affairs in George Mason's College of Humanities and Social Sciences. In an introduction, CML Director and History Librarian George D. Oberle emphasized the program's alignment with the center's mission of creating and disseminating learning that addresses questions of social, political and civil rights. For the libraries, University Librarian and Dean Anne Osterman and Librarian of Policy, Government and Civil Engagement Lorena Jordan emphasized how the program meets their institution's goals of supporting inquiry, access to information, intellectual freedom, and cross-disciplinary dialogue that informs such learning. Free and open to the public, the event drew more than fifty attentive students and community members.
The speakers agreed that the Constitution's lack of explicit language on immigration has yielded a legal and regulatory patchwork and persistent conflict over rights for the foreign-born. Moon described emergent immigration regulation in the early United States as more a state than a federal matter. From the paramilitary Texas Rangers (to protect white settlers from Mexicans and Indigenous people), to the 1849 "Passenger Law" head taxes imposed by northern states (to keep out Europe's poor), to California's confinement of Chinese immigrants, she said, border governance and the racial exclusion it often involved was only gradually federalized. Whether by state or national government, she maintains, we still saw a "continuum" of regulation, surveillance and deportation imposed, especially during economically uncertain times, as "a search for scapegoats."
"We are not separate from this past," Moon said. "We are part of it."
Correa-Cabrera pointed to ways that local-federal tension persists, especially when immigration status questions seep into state-regulated matters like schools and transportation. As both an immigrant and a scholar studying immigration, she brought a unique perspective on the recurring patterns of racism and exclusion. In the prominent example of recently renewed discourse over birthright citizenship, a matter supposedly settled by the Fourteenth Amendment, she said, she wants to know as a political scientist, "What puts it on the table again?" Rich raised similar questions, describing it as turning legally on questions of how we view those affected: Are immigrants just "people" or are they "persons" according to rights enumerated in the Constitution? And with respect to so-called original intent, did drafters of the Fourteenth Amendment intend to grant citizenship only to the formerly enslaved? (Her conclusion was clearly "no." "The Supreme court's terrible at doing history," she remarked at one point.)
Like the others, Rich notes how practice has filled in for Constitutional silences on immigration. Today, she said, "no one is questioning that Congress can make laws about immigration," she said. But that power and the courts' rest, at bottom, on "a vibe," she jibed, a sort of consensus that a "natural function" of Congress is deciding who crosses national borders. The document does also provide for states to push back, though, she said, as they have in recent cases by Democracy Forward and others claiming illegitimate intrusions by ICE and other immigration enforcers. At the other end of the spectrum, some courts (she named the Fifth Circuit) are enabling the "dangerous" assumption of traditionally federal powers of deportation by states including Texas and Florida.
Texas also featured in Moon's case for studying not just immigration events but its very "history," meaning the stories we tell ourselves about it. She cited the example of the Texas Rangers, so iconic that a pro baseball team bears their name. Yet the celebration obscures their origin as white settlers' paramilitary "border" force targeting the region's existing population of Mexicans and Indigenous people. To rectify such erasures, she said, "Mexican-Americans have to have their own alternative histories."
The annual Forum is part of a CML initiative building civic engagement toward the 250th anniversary, in 2037, of the Constitution's signing. The project revisits, through refreshed scholarly lenses, the university's "Legacy of George Mason" retrospective of the 1980s, centered on the bicentennial of the Bill of Rights. CML aims to continue the tradition of putting the Constitution's contemporary application in conversation with reflection on its origins and meaning while also it grappled with namesake George Mason IV's influence on our founding documents and the complex meanings of liberty in his day. Future panels and related symposia and publications will continue crossing eras and disciplines to view our national charter in action and may also engage George Mason's Gunston Hall and the GMU Press. CML is privileged to enjoy joint sponsorship by University Libraries and the College of Humanities and Social Sciences for these efforts as well as its groundbreaking archival and digitally driven approaches to these questions.