Unfit for the Constitution: Nativism and the Constitution, from the Founding Fathers to Donald Trump

Abstract

The executive order on travel issued by President Donald Trump in January 2017 identified the foreigners who should be barred from entry as those who “bear hostile attitudes” toward the United States “and its founding principles” and who “do not support the Constitution.” As this article shows, anti-immigrant movements have long used hostility-to-the-Constitution as the touchstone for identifying unwanted immigrants. In the 1840s, the Know-Nothings opposed Irish immigration based on a belief that Catholicism was incompatible with the Constitution. In 1882, when Congress enacted the Chinese Exclusion Act, it declared that the Chinese people were too foreign to embrace constitutional principles. In 1924, Congress enacted the National Origins Act out of the belief that members of the so-called Nordic race alone were genetically disposed to embrace constitutional values, while Jews, Italians, Poles, and others should be excluded because they would destroy the nation’s constitutional system. That policy continued until 1965 when Congress adopted the Immigration and Nationality Act, which declares that people of any race or nationality are equally capable of embracing the nation’s constitutional values. President Trump’s executive order, however, demonstrates the persistence of the belief that foreigners who do not share the nation’s predominant demographics are likely to harbor hostility to constitutional values.