Guest post by Michele Pifferi, Associate Professor of History of Medieval and Modern Law at the University of Ferrara, Law Department, Italy. Further details about the historicisation of the freedom to migrate, along with the comparative analysis of the laws regulating its exercise, are addressed by the research agenda of the project Migration Policies and Legal Transplant in the Mediterranean Area.

Historians have long been interested in migration. Over the last decade the field of ‘global history’ has generated a number of research projects and publications on this topic. Legal historians, however, have remained mostly on the sidelines of this cultural trend, as though the laws regulating the freedomto move―ius migrandi―are secondary to the social, economic, demographic, and political ‘push and pull’ factors. In this post I challenge this tendency, taking an historical approach to the right to migrate in liberal democracies, using the United States (as a country of immigration) and Italy (a nation of emigration) as examples.

Detention pen on roof of main building, Ellis Island, where emigrants held for deportation may go in fine weather. Illus. in: Quarantine sketches. The Maltine Company, [1902], [p. 18]. United States Library Of Congress
My purpose is to show how the law has always recognized the right of the state to control borders as prevailing over the individual right to move. Migration has always been a matter of relationship between individual and state, freedom and sovereignty, citizenship and foreignness. The balance between inclusion and exclusion has varied in each historical context, but the recognition of the right to migrate has always been somehow conditional, its enforcement restricted and its legal protection weak. This dark side of the law can be found in medieval discrimination against foreigners, the natural law theories of the seventeenth century, the Declaration of the Rights of Men and of the Citizen, and the formation of the liberal state in the nineteenth and twentieth centuries in western societies. Immigration law, in other words, was mostly designed as a means of excluding aliens rather than as a means of inclusion, as a utilitarian exploitation of migration rather than a safeguard for migrants.

In the second half of the nineteenth century, international law described the individual freedom to move as subordinate to state decisions justified by political and economic public interests. In 1854, Robert Phillimore, in his Commentaries upon International Law, considered “a maxim of International Law that the Government of a State may prohibit the entrance of strangers into the country, and may therefore regulate the condition under which they shall be allowed to remain in it, or may require and compel their departure from it.” Similarly, the French jurist Paul Louis Ernest Pradier-Fodéré, in his Traité de droit international public européen et américain published in 1887, defined the state power to expel aliens as one of the basic elements of social protection and, therefore, as a facet of the general right to punish. The power to force a stranger to leave the country and, if necessary, to drag him (or her) to the border was, according to Pradier-Fodéré, a direct consequence of sovereign right. It’s therefore not surprising that the U.S. Supreme Court, in open contrast to any apparent recognition of the freedom of emigration, has never questioned the absolute power of Congress to regulate and limit both the admission and the stay of aliens within the national borders. In Fong Yue Ting v. U.S. (1893), the Supreme Court stated that “the right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace” was to be considered as an “inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare.” With a significant shift of its original meaning, the notion of ‘inherent and inalienable right’ was referred to the state rather than to the individual. The legal reasoning of liberalism, which was committed to improving and enlarging citizens’ rights, didn’t care too much about those of non-citizens. 

Immigration, race, and nation building in the U.S.

The great fear of the period That Uncle Sam may be swallowed by foreigners: The problem solved. San Francisco: White & Bauer [between 1860 and 1869]. United States Library of Congress, Prints and Photographs Division, Washington, DC, 20540
The dynamics of the U.S. immigration laws during the Progressive Era reveal how the open door policy characterising the first century of the American democracy turned into a restrictionist apparatus of provisions and procedures, aimed at inventing a type of good Americanism in opposition to undesirable aliens and racial others. Fears of the deleterious impact on the market of low-wage immigrant workers, combined with a rise of nativist league and anti-immigration parties and the exploitation of the relationship between an increase in crime and rise in the immigration rate (grounded on untrue statistics as the Report of the Dillingham Commission about Immigration and Crime shows in 1910) led to a system based on exclusion, detention, and deportation. The melting pot was considered to have reached its saturation point (as per Hoyt), the U.S. likened to a stomach that could no longer swallow any indigestible food, and the prosecution of the open door policy without any discrimination in the admission’s criteria was equated with a ‘race suicide’ by the WASP supporters (according to Ross).
 
The Americanese wall as Congressman [John Lawson] Burnett would build it (1916). United States Library of Congress, Prints and Photographs Division, Washington, DC, 20540
All these arguments gradually changed the prevailing attitude about immigration, and the legal system reflected the new policy by enacting selective criteria of admissibility that were based on racial paradigms. The Chinese exclusion acts, the literacy test passed by Congress in 1917, and the quota system adopted in 1921 discriminated the inclusion or exclusion of migrants not according to individual behaviours or characteristics, but to cultural and racial elements. But the racial formation paradigm (Omi; Winant; Lee) can be seen also in cases referring to racial classifications (see, e.g., In re Saito 62 F. 126 [1894]; In re Ah Yup 1 F. Cas. 223 [1878]) and in Supreme Court’s decisions. In 1923 in U.S. v. Bhagat Singh Thind, the Supreme Court decided that a high caste Hindu, of full Indian blood, could not be considered a free white person and therefore could not be naturalized. But the notion of whiteness lacked a scientific meaning and was employed by the Justices “in the popular sense of the word,” as a word of common speech and not of scientific origin.

Italian emigration laws and the idea of a soft colonization

If we look at the two Italian emigration laws (1888, 1901) passed during the great migration wave, the ambiguities and the limits surrounding the freedom to move appear even more clearly. In both acts, article 1 declares that emigration is free, except for the limits provided by the law. What are these limits? They basically consist of military service duties, sentences, administrative requirements (such as a passport or visa), and in temporary limitations to settle in specific regions stipulated by the government for public order policing. Parliamentary debates shed light on the liberal paradox that free emigration is a principle of natural law but the state can always interfere in its enjoyment because the right of the country prevails over the individual right to leave the homeland. Clearly driven by utilitarian economic reasons, lawmakers try to control and exploit what cannot be prevented: the emigration of the poorest part of the population (see, for example, Enrico Ferri's argument about emigration as a safety valve for the society, insofar as it relieves demographic pressure that produces unemployment and poverty). Admitting the impossibility of improving the welfare of the whole population (especially in the South), the government embraces a Janus-faced rhetoric, recognizing that emigration “is a historical, normal, perpetual phenomenon of mankind,” which cannot be barred because the modern country “is not a territory but a flag, i.e. a moral unity that is not destroyed by material distance (…), because in the economic system it is a new force of production and consumption opening new trade markets; it is, in the political order, a pacific spread of the Italian descent, language, sentiments, and institutions; it is, in the ethnographic order, the generation of populations; it is, in the humanitarian order, the civilization and the cultivation of the world” (R. De Zerbi, Relazione). Instead of contrasting it, or of solving its causes, the lawmaker’s strategy is to take advantage of emigrants, regulating and helping their departures, journeys, arrivals, and hopefully remittances (with Italian banks abroad). The limited and controlled right to emigrate conceals a political project of soft and peaceful colonization (especially in relation to the emigration towards Rio de La Plata).

This outline of the restrictions surrounding the ius migrandi at the turn of the twentieth century in a country of mass emigration (Italy and a country of immigration―the U.S.) unveils some of the liberal state’s contradictions. The rising apparatus of protections and services offered by the welfare state to citizens was denied, or only partially granted, to aliens. Border control was a cornerstone of every nation building policy. Only the universalistic perspective of the post-WWII human rights movement started challenging this frame. Today’s inconsistencies and deficiencies of migration laws have deep historical roots, related to the supremacy, ever changing but persistent, of the sphere of public interest and social security over the individual freedom.

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How to cite this blog post (Harvard style): Pifferi M (2014) Ius migrandi: The Legal History of an Unrecognized Right. Available at: http://bordercriminologies.law.ox.ac.uk/ius-migrandi-the-legal-history (accessed [date]).