LIQUOR LICENSES AND THE “IMMIGRANT PROBLEM”

Controlling commerce in spirits has been a focus of governments since the colonial era and, well before that, in England and parts of Europe. Courts in the antebellum period repeatedly affirmed the power of the state to drastically curtail or completely prohibit the possession, consumption, or sale of alcoholic beverages (Novak Reference Novak1996, 171–89). Regimes of liquor control were oftentimes explicitly racialized, such as laws in the federal territories that specifically barred the sale of liquor to Native Americans or laws that restricted access to alcohol for enslaved persons and free Blacks prior to the Civil War (Unrau Reference Unrau1996; Adams Reference Adams2019). Immigration policies also incorporated a consideration of alcohol use when Congress added “chronic alcoholism” to the list of excludable classes in 1917. ^{Footnote 15} But regulating access to alcohol based on citizenship status, rather than on race or tribe, was a new legal technique in the late nineteenth century. It was one forcefully promoted by temperance advocates, who linked immigrant identity to alcohol consumption early in the movement. Anti-immigrant rhetoric was a staple of the movement, starting in the 1880s and lasting into the 1930s. As argued in The Cyclopedia of Temperance, Prohibition and Public Morals in 1917, “[t]herefore the saloon is the keystone in the arch of the immigrant problem. Destroy the keystone and the problem will crumble” (Board of Temperance, Prohibition and Public Morals of the Methodist Episcopal Church 1917, 216). Reformers blamed European immigrant groups—in particular, Germans, Irish, and Italians—for fostering a “saloon culture” and contributing to a significant increase in consumption of light liquors like beer and wine. Blaming foreigners turned out to be a potent recruiting tool (McGirr Reference McGirr2016, 13–21).

Citizenship moved from a rhetorical rallying cry to an explicit legal qualifier in the 1880s, when states began passing what were known as “high license” laws that made it exceedingly difficult and costly to obtain a license to sell alcoholic beverages. Nebraska, Missouri, and Illinois all passed such laws in the 1880s, but Pennsylvania appears to be the first to include citizenship as a legal qualifier in its 1887 legislation known as Brooks Law (Meader Reference Meader1891, 340). Pivotal in the adoption of this citizenship-based restriction was the Pennsylvania chapter of the WCTU. The WCTU is credited with remarkable achievements in prohibition and other social reform movements generally, but the organization was also the first to lobby successfully for a citizenship restriction in licensing by turning eyes toward immigrants as an alcohol problem. Founded in 1873 in Cleveland, Ohio, the WCTU quickly spread to other states. The first president of the organization, Annie Wittenmeyer, hailed from Philadelphia, and the Pennsylvania WCTU was one of the most active branches (Szymanski Reference Szymanski2003, 164–69). Union members took a wide range of approaches to temperance reform, including using moral suasion and education reform (singing hymns, kneeling, and praying outside saloons, creating temperance education programs in the public schools, distributing tracts) as well as pushing for legislative action and state prohibition.

In Pennsylvania, WCTU members took note of the various nationalities of liquor dealers and formed a subcommittee that was tasked with taking the temperance message into immigrant communities. This committee made sure that materials were published in multiple languages, including French, German, Italian, and Chinese, and distributed to various immigrant neighborhoods (Kaylor Reference Kaylor1963, 217; Noon Reference Noon2005, 105). The WCTU effectively put pressure on the state legislature to greatly reduce access to alcohol. The resulting Brooks Law, named for state representative William H. Brooks, made significant changes to the extant regulation. Prior to its passage, judges could grant a license to any person, in their sole discretion, for a fee of fifty dollars (or three hundred dollars for Allegheny County, where Pittsburgh is located). The new law not only increased the fee, to as much as five hundred dollars in most counties, but also added a new list of eligibility criteria, including citizenship and moral character. Applications had to be accompanied by references from twelve voters and the names and signatures of two bondsmen (Friends’ Intelligencer and Journal 1889, 237).

This focus on foreigners as an alcohol problem would prove enduring in the WCTU. As its founder, second president, and most influential leader, Frances Willard, argued in 1890, “[a]lien illiterates rule our cities today; the saloon is their palace; the toddy stick their scepter” (The Voice 1890, 8). Progressive reformers sought to destroy the saloon by refusing to license immigrant proprietors. There is some indication that this strategy worked, at least initially. ^{Footnote 16} A year after the passage of Pennsylvania’s law, the press reported courts granted only 7,728 licenses, almost a 50 percent reduction from the prior year’s grant of 14,704. One commentator attributed this reduction to the citizenship restriction, noting that much of the decrease was attributable to the fact that “a very large proportion of those already holding licenses were neither native born nor naturalized” (Friends’ Intelligencer and Journal 1889, 237).

Excluding noncitizens from the sale of liquor had immediate economic effects since it barred them from an entire industry that might provide a steady and profitable livelihood. John Adams Trageser was one such noncitizen negatively affected by the new turn to exclusion in the industry. Trageser was born in Prussia in 1826 and emigrated to the United States sometime after. By 1870, he was married and living in Baltimore, plying his trade as a shoemaker, with eight children, ages two to fifteen.Footnote ¹⁷ It was likely exceedingly difficult to support a family of ten on a shoemaker’s wages, and Trageser opened a saloon at the corner of Boston and Streeper streets, along the city’s waterfront. The location was directly across the harbor from Locust Point, an immigrant-receiving point known as “Baltimore’s Ellis Island.” Over the course of almost fifty years of operation—from 1868 to 1914—the port would see the arrival of more than 1.2 million European immigrants. In the early years of the port, these immigrants were almost exclusively from Germany, contributing to a burgeoning community of German speakers that was already in place prior to the Civil War (Cassie Reference Cassie2016; n.d.).

Given these factors, a saloon on the waterfront was a good investment, with plenty of clientele. But Trageser was met with a major obstacle in operating his saloon when he was denied a license to sell “spiritous liquors” by the city clerk. In 1890, the Maryland legislature passed a high license law that raised licensing fees from $50 to $250 and, for the first time, barred noncitizens from receiving licenses at all. In the city of Baltimore, the law created a board consisting of three commissioners who would oversee the granting of licenses and ensure the application of the new criteria.Footnote ¹⁸ Trageser had his “first papers,” which indicated his intent to apply for naturalization once he had met the residency requirements, but declarants were not included in the law: one had to be naturalized in order to be eligible for a license.

Rather than waiting until he met the five-year residence requirement to pursue naturalization, Trageser decided to challenge the denial of a license, first before the court of common pleas and then the Baltimore city court.Footnote ¹⁹ When he failed in both, he appealed to the court of appeals. Trageser’s lawyers argued that requiring citizenship for a license was in direct contravention of the Fourteenth Amendment, particularly its guarantees of due process and equal protection. In the 1886 case of Yick Wo v. Hopkins, the US Supreme Court had affirmed that aliens, as persons protected by the Fourteenth Amendment, were entitled to bring equal protection challenges to discriminatory state and local laws, such as the laundry regulations at issue in that case. Trageser argued that refusing to grant him a license based on his alienage was a direct violation of his rights. Yick Wo, issued by the US Supreme Court just four years earlier, appeared to be a supportive precedent for that view.Footnote ²⁰

The clerk of the court of common pleas, John Gray, was represented by a young attorney, William Shepard Bryan Jr., who had recently been elected to the board of election supervisors of the city of Baltimore and would soon go on to become city attorney and eventually the attorney general of the state of Maryland.Footnote ²¹ Bryan Jr.’s father, William Shepard Bryan, had been appointed to the Maryland Court of Appeals in 1883. ^{Footnote 22} Despite a clear conflict of interest, Judge Bryan issued the opinion in the case, siding with his son in upholding the law. Bryan declared that the state has the power to regulate to protect “public morals, public health, public order, [and] peace and tranquility.” When it came to alcohol, a state could prohibit its sale entirely. In a move that would be repeated in other alienage discrimination cases, Judge Bryan argued that, because the state could prohibit the activity entirely, then it had more or less free reign to regulate that activity however the legislature saw fit. As the opinion stated, “[n]o one can claim as a right the power to sell; either at any time, or at any place, or in any quantity. If he is allowed to sell under any circumstances, it is simply by the free permission of the Legislature, and on such terms as it sees fit to impose.” ^{Footnote 23}

But what about discrimination between persons—in this case, between citizens and aliens—in the terms of this legislation? Bryan acknowledged Yick Wo as a leading precedent, but he constrained the holding to its facts, arguing that the Fourteenth Amendment applies when a state acts explicitly to prevent all means of livelihood of one group. The discriminatory laws passed in California, according to Bryan’s interpretation, “were enactments to take away from the Chinese the right to labor for a living.” In comparison, “the statute now before us oppresses no one, and was intended to oppress no one. It does not take from any man a solitary right, privilege or immunity. It subjects no one to penalties for its violation which are not imposed equally on all offenders.” ^{Footnote 24} Perhaps realizing the illogic of this statement (given that the law in fact was not “imposed equally on all offenders”), Bryan then doubled down on the police power: “It does not, it is true, make an equal partition of the privilege of liquor selling among classes of persons. But there is no warrant for supposing that legislative control over this traffic must conform to any such standard. It is not crippled by any such restraint. It overrides all private interests and embraces all means which are necessary and proper to protect the public from evils connected with the subject.” ^{Footnote 25}

As if this statement were not enough, Bryan ended with a coda (“a few more words may be added”), supporting absolute state power against any possible treaty claims from noncitizens: “We are unable to conceive that anyone, citizen or alien, can acquire rights which could in any way control, impair, impede, limit or diminish the police power of a State. Such power is original, inherent and exclusive; it has never been surrendered to the General Government, and never can be surrounded without imperiling the existence of society.” ^{Footnote 26} Judge Bryan was not an outlier in his remarkably boundless support for state police power. Deference to the power of the state to regulate for the “public welfare” was a core element of Gilded Age jurisprudence, and this deference to state police powers continued unabated in the Progressive Era, amidst the regulatory fervor of that period (Novak 1996, 9; Reference Novak2022, 157–60).

The number of state statutes and local ordinances exploded between 1900 and 1930. ^{Footnote 27} Rather than resisting this explosion in social legislation, judges were remarkably deferential to it, notwithstanding the US Supreme Court’s decision in Lochner v. New York (Urofsky Reference Urofsky1985; Kens Reference Kens1991).Footnote ²⁸ In some instances, this deference inured to the benefit of vulnerable populations, serving as a check on corporate greed, instituting workplace laws that protected against exploitation and consumer protection laws that kept the public safe. But deference to state police power in this period was by no means an unalloyed good for the powerless. As Christopher Tomlins (Reference Tomlins, Marcus and Valverde2008, 51) notes, police power in this period also meant “segregation statutes, state eugenics statutes, state criminalization of interracial marriage, state sodomy laws—all passed in the name of the people’s health, morals, and general welfare.” It was no coincidence that one of the most prominent proponents of the broad use of police powers—legal scholar and Pulitzer Prize winner Charles Warren—was also a founder of the Immigrant Restriction League (IRL), a highly influential nativist organization that lobbied successfully for the introduction of racial quotas in immigration law (Lee Reference Lee2019, 113–46). Progressive reformers, like those with the IRL or the WCTU, were supporters of immigration restriction but also saw opportunities in state and local regulation to limit the rights of those who might challenge their social aims.

Yet in the 1890s, when Trageser brought his appeal, it was not certain that his individual constitutional rights claims would fail. Up until 1900, the courts had struck down more anti-alien economic legislation than they had upheld. These primarily took the form of attempts to tax or register immigrants or to bar their labor entirely. Legal scholar Christopher Tiedeman (Reference Tiedeman1900, 331) noted this trend with approval in 1900 when he observed that “[s]tates have, by legislation, undertaken to protect native labor against alien labor; but in each case the legislation has been declared to be an invasion of the jurisdiction of the United States government, and an unconstitutional interference with the rights of aliens.”

Such arguments about “unconstitutional interference” succeeded in the Supreme Court of Michigan in 1902 when the court upheld the right of a Canadian barber to practice his trade in the state, striking down a provision passed by the legislature in 1899 requiring citizenship to receive a barber’s license. ^{Footnote 29} The court made the striking acknowledgment that discriminating based on alienage was akin to discriminating based on race, both of which were constitutionally questionable under the equal protection clause. The state might require licenses for particular activities or professions, the court acknowledged; doctors, for example, could be required to submit to examination and licensure. But even in the case of the medical profession, the legislature had to have a valid reason to limit eligibility. As Justice Robert Morris Montgomery noted, “the practice of medicine is no more an incident of citizenship than the practice of the trade of a barber. All persons are entitled to enjoy the equal protection of the law, and while it may be competent for the legislature, in the exercise of its police powers, to provide for an examination and licensing of barbers, … would it be contended that the legislature might provide that only white persons should be licensed?” The court answered in the negative, concluding that the legislature did not have the “right to require citizenship” in this case.

To be sure, cutting hair and selling alcohol were two quite differently situated activities in the view of the courts of this period. While owning a saloon and serving alcohol were ways to make a living, the courts did not treat these as “common occupations” that received constitutional protection. Trageser, in contrast to the barber in Michigan, faced an uphill battle based in part on the activity in question. And, in fact, this was precisely what the Michigan court found. Despite holding Michigan’s law unconstitutional, Judge Montgomery cited the Trageser case favorably. As he wrote, “this is a business peculiar to itself, which might be wholly prohibited by the legislature.”Footnote ³⁰

The exclusion of noncitizens from this “business peculiar to itself” continued apace after the Trageser ruling. In 1909, the state of Ohio passed what was known as the “Dean character law,” a liquor regulation that required anyone selling intoxicating liquors to answer five questions relating to their criminal background and immigration status. The first question was “Are you, or if a firm, is any member of your firm an alien or an unnaturalized resident of the United States?” ^{Footnote 31} A “yes” to this question would disqualify the applicant. The law had the specific, and intended, effect of “excluding from the business gamblers, felons and foreigners.” Attorneys for resident Benton Bloomfield, who challenged the law, argued that it was a violation of the Fourteenth Amendment since it unlawfully discriminated between aliens and citizens. ^{Footnote 32} They, like Trageser’s lawyers, drew specifically on Yick Wo, pointing out that this case showed that “the word ‘person’ as used in this article meant everybody, whether a citizen of the United States or a subject of the emperor of China.” Furthermore, they argued, the distinction based on alienage in the law was “a perfectly arbitrary distinction and discrimination.” ^{Footnote 33}

The Supreme Court of Ohio upheld Bloomfield’s conviction against a constitutional challenge, citing Trageser. Unlike the law at issue in Yick Wo, the court argued, the character law in Ohio did not grow out of “a spirit of race hatred or inhospitality, or a purpose to deny the equal protection of our laws or equal opportunity under our institutions.” Instead, such liquor laws “are based on the belief, that an alien cannot be sufficiently acquainted with our institutions, and our life to enable him to appreciate the relation of this particular business to our entire social fabric.” ^{Footnote 34} In both Bloomfield and Trageser, the courts severely circumscribed the holding of Yick Wo, confining its constitutional limitations on state and local governments to instances of specific discrimination involving “race animus.”Footnote ³⁵ This left discrimination based on the more general category of alienage, which could apply to persons of any race, as constitutionally permissible, despite the wording of the equal protection clause that guaranteed equal treatment to all “persons.” In this interpretation, state police powers to discriminate based on lack of citizenship were practically boundless. ^{Footnote 36}

The decision in Trageser had the narrow effect of upholding the state statute barring noncitizens from the liquor trade. But that was not the extent of its legacy. The court ruling had a much broader effect in providing a precedent for other jurisdictions. The legacy of the case would go far beyond the individual. The rationale developed in Trageser received favorable citation by subsequent courts and was cited in almost every published case of alienage licensing discrimination for the next two decades, not just in liquor licensing but also in other restrictions of noncitizen economic rights. As time would soon tell, the exception of what the Michigan Supreme Court called the “business peculiar to itself” would begin to swallow the rule as more and more jurisdictions introduced licensing laws requiring citizenship—in areas far afield from alcohol regulation—and more courts upheld these laws against constitutional challenge.

GAME, GUNS, AND “ALIENS TO THE STATE”

As with the regulation of alcohol, there were long-standing precedents for excluding access to hunting, fishing, and gun ownership based on the types of marginalized status. State and local regulations had limited or barred Native Americans, enslaved persons, and free Blacks from access to guns, for example, through various legal mechanisms in the eighteenth and nineteenth centuries (Gulasekaram Reference Gulasekaram2012, 620–22). But the idea of restricting hunting and fishing licenses and gun ownership based on citizenship status was new in the early twentieth century. The modern era of fish and game laws gained steam after the US Supreme Court’s decisions in McCready v. Virginia in 1876 and Geer v. Connecticut in 1892. In McCready, the court declared that the state could limit the planting of oysters based on state citizenship.Footnote ³⁷ In Geer, the court upheld a Connecticut law prohibiting hunters from selling or transporting game outside the state boundaries. ^{Footnote 38} The “state ownership doctrine,” as it came to be known, affirmed a state’s ownership of its public resources and common property in trust for the benefit of the people of the state. In essence, the doctrine posited that “the people” are the owners of the common property and that the state is the trustee, given powers to dispose of the property in line with the public trust. ^{Footnote 39}

After Geer, a growing number of states created comprehensive fish and game laws, meant to protect the game within state borders and to limit access, and they created new agencies to enforce them. Efforts at increased regulation were backed by various parties, including coalitions of gentlemen hunters who wanted to preserve a “sportsmen’s paradise” for recreational hunting and wealthy rural landowners who wanted to keep neighbors from trespassing on their land in search of small game to eat. New attitudes toward wildlife conservation and recreational sportsmen’s hunting collided with much older, more traditional, and widespread forms of subsistence hunting in rural America. Throughout the country, poor laborers and farmers—both citizens and noncitizens—relied on subsistence hunting to supplement low wages or a meager harvest. Derided as “pot hunters,” they hunted mainly small game like squirrels, groundhogs, rabbits, and birds. Leaders of the fledgling wildlife conservation movement—many of them hunters themselves—blamed subsistence hunters for a range of ills, particularly when it came to the killing of birds, which they claimed were essential for the eradication of insects and the success of crops (Warren Reference Warren1997). Reformers were explicit in blaming immigrants, particularly Italians, for the destruction of wildlife. To be sure, immigrants were not the only source of the evil, according to conservation leaders. William Hornaday’s (Reference Hornaday1913) influential book devoted chapters to “poor whites and Southern negros” and to women (who were blamed for decimating bird populations in their thirst for feathered hats) as well as to Italian immigrants.

These reformers turned to law as the answer for controlling these “alien hunters.” The president of the Audubon Society called for immigrant licensing restrictions and harsh penalties for violations (Taylor Reference Taylor2016, 214). The first iterations of these discriminatory laws charged a higher license fee for those who were either noncitizens or were citizens from another state. Pennsylvania passed such a law in 1903, known as the “Non-Resident License Law,” influenced in part by a state Game Commission report in 1902 that blamed “the unnaturalized foreigner” for most game violations (Warren Reference Warren1997, 28). The 1903 law required non-residents, defined to include unnaturalized foreigners, to buy a ten-dollar license in order to hunt. The law also made it a crime for an immigrant who did not buy a license to carry a gun “in the fields or in the forests or on the waters” of the state. State residents who were citizens, by contrast, were not required to get a license at all, either to hunt or to carry a gun (28–29).

By 1910, close to half the states had game laws charging a significantly higher license fee for noncitizens, even if those noncitizens were long-time residents of the state. Sometimes the fees were the same as that charged to an out-of-state citizen, but, oftentimes, they were considerably more. The so-called “alien license” could range in amount from fifteen dollars in Maine, Louisiana, and Connecticut, to fifty dollars in Wyoming, to one hundred dollars in Utah and Alaska. This was not an insignificant sum at a time when workers typically made less than eight hundred dollars per year (Painter Reference Painter2008, xvi). By comparison, state citizen resident licenses cost a nominal sum, typically around two dollars in most states that required them (Oldys, Brewster, and Earnshaw Reference Oldys, Brewster and Earnshaw1910).

In cases upholding game laws during this period, arguments were often blurred between general police powers and the more specific idea of state ownership. In Geer itself, for example, the court identified both rationales:

Yet, notwithstanding this blurring, the state ownership cases posed a distinct and particular question that was not present in those cases justified based on police power alone. Who, exactly, were the “people of the state”? Routinely, courts determined that state legislatures had the power to answer that question and that they could exclude noncitizens from state membership for these purposes.

This determination could lead to some tortured and strange reasoning as lawmakers and courts tried to decide what rights belonged to noncitizens who were long-term residents of a state. In Florida, for example, two Italian immigrants were held in custody for taking oysters from a public oyster bed without a license, for which they would have had to pay ten dollars as “alien[s] of the state of Florida,” a phrase that seems nonsensical given that “aliens” are admitted nationally, not state by state. ^{Footnote 41} Abramo Bondi was an Italian immigrant who had lived lawfully in the city of Barre, Vermont, for fourteen years. In 1912, he challenged Vermont’s game law, which had been adopted that year, that required higher hunting license fees for noncitizens. Under that law, those who were “bona fide residents” of the state were required to pay a license fee of seventy-five cents, while those who were not bona fide residents were required to pay a fee of ten dollars plus a fifty-cent clerk fee—a more than tenfold increase. The statute defined bona fide residents as “all citizens of the United States who have lived in this State for not less than six months prior to date of making application for a license.” ^{Footnote 42}

Bondi easily met the six-month residence requirement, given that he had lived in the state for fourteen years, but he failed the citizenship requirement. Bondi sued, arguing that the law violated both the state and federal constitutions as well as the US treaty with Italy. In deciding his case, the Supreme Court of Vermont acknowledged that, based on his fourteen years of residence in the state, he was a “bona fide resident” but then stated that this was “immaterial in this case because of his want of United States citizenship.” The court equated national citizenship with state citizenship, concluding that Bondi, “although by the agreed statement a resident of Barre, is not entitled to a resident hunter’s license, because not a citizen of the United States and of this state.” ^{Footnote 43} The court was also quick to dispense with Bondi’s Fourteenth Amendment claim, based on state ownership: “We think the distinction between residents who are citizens and those who are not, made with reference to the acquirement of individual interests in property which belong to the State, affords a just basis for classification, and that a reasonable discrimination may properly be made against an alien who becomes a permanent resident without taking upon himself the full obligations of citizenship.”Footnote ⁴⁴

Bondi also brought a challenge based on the Vermont state Constitution since the law was in direct violation of a provision that all “inhabitants” of the state could “hunt and fowl” on their own lands as well as on lands not enclosed. Despite Bondi’s long residence, the court held that the state’s police power to regulate for the common welfare trumped any guarantees of liberty provided to all “inhabitants” in the state constitution. As to Bondi’s treaty claims, the court opined that the treaty did not protect Italian citizens from “the minor discriminations incident to the ordinary exercise of the police power.” ^{Footnote 45}

The so-called “minor discriminations” of higher license fees quickly began to add up, as more and more jurisdictions added citizenship restrictions. In 1909, Pennsylvania amended its law from charging a higher fee to prohibiting noncitizen hunting licenses completely. ^{Footnote 46} This time, gun possession alone was enough to convict. The law made it “unlawful for any unnaturalized foreign-born resident within this commonwealth to either own or be possessed of a shotgun or rifle of any make.” Simply “the presence of a shotgun or rifle in a room or house” occupied by the alien was sufficient to find a violation. ^{Footnote 47} In October 1909, Joseph Patsone, an Italian immigrant living in the rural town of Hillsville, was arrested, convicted, and fined for possessing a shotgun. Patsone was one of eight Italian immigrants arrested and convicted on the same day, in what newspapers reported was a coordinated and intentional show of force by the state game commission (New Castle News 1909, 1). (It was no coincidence that the arrests happened on the same day as the execution by hanging of an Italian immigrant who had been convicted, under suspicious circumstances, for the murder of a state game warden a few years prior.) Patsone was charged a fine of twenty-five dollars, or twenty-five days in jail, and his gun was confiscated.

Patsone was the only one of the eight to challenge his arrest. Marcel Alphonse Viti, an Italian American lawyer, represented Patsone before the Superior Court of Pennsylvania. Viti came from a reputable family in Philadelphia; his grandfather immigrated from Italy in 1816 and established a successful import and trade business. Viti received his law degree from the University of Pennsylvania in 1893 and went on to serve in a wide range of organizations and positions, including as legal advisor to the Italian embassy in Washington, DC (General Alumni Catalogue of the University of Pennsylvania 1917, 129; D’Andrea Reference D’Andrea2013, 10–13). Viti argued that the law violated the Fourteenth Amendment’s guarantee of equal protection, but the court held that citizenship was an acceptable mode of classification in the exercise of the state’s police power. As the court stated, “[Patsone] is one of a very large class of aliens, whose sojourn in this country is but temporary and whose place of abode is capricious and uncertain, who cannot speak our language nor understand our customs or laws, who pay no taxes and share no part of the public burden. Under all our decisions his right to remain among us is subject to limitations imposed upon all of his class,” citing then to the Trageser case prohibiting alien liquor licenses. ^{Footnote 48} Despite seeming to single out Italian immigrants itself, the court defended the law by noting that it was “not directed against any particular nationality or special class of aliens.” ^{Footnote 49} In other words, the law did not violate equal protection because all aliens were discriminated against equally.

As it happened, Patsone’s case was the first instance of twentieth-century alienage discrimination to make it to the US Supreme Court. On appeal to the high court, Viti acknowledged the state’s power to regulate hunting but argued that the state could not confiscate personal property—that is, the guns—on this basis. He also sought to draw attention to the realities of immigrant communities in Pennsylvania, which were far more diverse than the appeals court acknowledged. Viti reminded the justices that not all Italian immigrants were poor laborers of short residence in the state: “An alien merchant or manufacturer who may have spent most of his life in Pennsylvania, adding to its wealth as well as his own, not only may not shoot game upon his own land … but he is not allowed the possession of a shotgun or rifle upon such property for the protection thereof.” ^{Footnote 50} As Viti emphasized, the law infringed on a key stick in the bundle of property rights, which included the right to hunt on one’s own land.

The court’s decision in Patsone, issued by Justice Oliver Wendell Holmes, is remarkably deferential to the legislature, even by the standards of the day. Justice Holmes declared that “a state may classify with reference to the evil to be prevented, and that if the class discriminated against is or reasonably might be considered to define those from whom the evil is mainly to be feared, it properly may be picked out.” Echoing his writings in The Common Law, he noted that “the question is a practical one depending on experience.” As he explained, “experience is supposed to have shown to mark the class. … The question therefore narrows itself to whether this court can say that the Legislature of Pennsylvania was not warranted in assuming as its premise for the law that resident unnaturalized aliens were the peculiar source of the evil that it desired to prevent.” Not surprisingly, he found no good reason to assume that the legislature was wrong. As he opined, “the question so stated is one of local experience on which this court ought to be very slow to declare that the state legislature was wrong in its facts … it is enough to say that this court has no such knowledge of local conditions as to be able to say that it was manifestly wrong.” ^{Footnote 51} Justice Holmes did not specify what “local conditions” or “local experiences” he had in mind. As to the criminalization of gun possession, even without evidence of any hunting, Justice Holmes posited that the means are justified if the ends are legitimate—in other words, that, as long as it is lawful for the state to discriminate in preventing the “evil,” it is lawful for the state to adopt regulations that are in furtherance of that goal, such as criminalizing the possession of a firearm. As Justice Holmes biographer G. Edward White (Reference White1993, 347) would later note, in Patsone, “Holmes appears to have transcended deference, even to the point of abdication of judicial responsibility.”

EXPANDING EXCLUSION

The laws at issue in the Trageser and Patsone cases—and the court rulings upholding them—were highly influential. In game laws, states were quick to follow Pennsylvania’s lead, encouraged by progressive reformers who drew attention to these legislative innovations. ^{Footnote 52} Hornaday (Reference Hornaday1913, 103) wrote in his influential book that Pennsylvania’s anti-alien gun law was “the best” and should be “taken as a model for every state and province in America.” By 1920, twenty-three states charged noncitizens a higher hunting license fee (Lawyer and Earnshaw Reference Lawyer and Earnshaw1920). By 1933, thirteen states banned aliens outright from access to hunting licenses, and twelve barred them from fishing licenses (Fields Reference Fields1933, 218). Several states conditioned gun ownership on citizenship. California, for example, passed a law in 1923 requiring gun permits for pistols and revolvers and barred noncitizens from receiving such permits. As an attorney challenging that law noted, “there is no provision in the law whereby an unnaturalized foreign-born person, not matter what his status may be, can secure a license or permit to own or possess any firearms or stock in trade consisting of firearms.”Footnote ⁵³

States also followed Pennsylvania’s lead on liquor licenses. On the eve of the passage of the Eighteenth Amendment, which established Prohibition, a majority of states had liquor licensing laws that excluded noncitizens. ^{Footnote 54} As one immigrant advocate noted with frustration, “[t]he rule … that aliens may be denied licenses to sell intoxicating liquor, qua alien, is now well established, and it operates to shut aliens out of a vast area of business activity” (Fellman Reference Fellman1938, 148). Citizenship became firmly embedded as a requirement for liquor and hunting licenses. But the impact of these initial licensing laws went well beyond liquor, guns, and game. The Patsone case provided support for other exclusionary game laws as well as state attempts to block noncitizens from public employment. Just one year after handing down the Patsone decision, the US Supreme Court upheld New York’s law limiting employment on public works projects to citizens only, based in part on the state ownership doctrine. ^{Footnote 55} In his ruling for the lower court, Judge Benjamin Cardozo made a similar connection, noting that “[t]o disqualify aliens is discrimination indeed, but not arbitrary discrimination, for the principle of exclusion is the restriction of the resources of the state to the advancement and profit of the members of the state. Ungenerous and unwise such discrimination may be. It is not for that reason unlawful.” Judge Cardozo, like other judges at the time, was little troubled by the notion that aliens, although admitted lawfully, did not merit state membership until such time as they became naturalized citizens. The exclusion, in Cardozo’s opinion, was categorial: “The people, viewed as an organized unit, constitute the state. The members of the state are its citizens. Those who are not citizens, are not members of the state.” ^{Footnote 56} In affirming this view, the US Supreme Court supported efforts in other states to equate public jobs with common property or wild game: as a resource that could constitutionally be restricted to citizens only.

In a similar way, the police power rationale for the limitation of individual economic rights in one industry—the sale of liquor—soon bled into a wide range of restrictions on other forms of immigrant economic activity. Courts across the country cited Trageser in upholding provisions that restricted noncitizen licenses in areas unrelated to alcohol—for example, from the operation of certain types of establishments, including pool halls, billiard rooms, and bowling alleys, to selling soft drinks and driving buses and motor cars, among other activities. As the restrictions appeared in areas that were further and further afield from the widely acknowledged social scourge of alcohol, those defending the laws—and the judges ruling on behalf of the state—made even more implausible arguments about the relationship between alienage and the economic activity in question. Driving while a noncitizen provides a good example. In 1917, the municipality of Weehawken, New Jersey, passed an ordinance that required citizenship to obtain a license to operate a vehicle for hire. Russian immigrant Samuel Morin found himself out of a job, and fined ten dollars, for driving without this new chauffeur’s license. Morin appealed his conviction to the Supreme Court of New Jersey, which held for the township. The court relied on police powers to argue for wide latitude for municipalities to regulate motor vehicles given the “danger of accident and damage arising from [their] use.” ^{Footnote 57} But the court made no attempt to explain why citizenship was relevant to safe driving, instead pointing to cases in other areas, like Trageser, that had affirmed state power to discriminate on the basis of alienage.

In contrast, the Supreme Court of Rhode Island drew the connection between driving and citizenship directly when reviewing a similar ordinance passed by the city of Providence in 1920. An Italian immigrant who was denied a license under the ordinance sued the city. The court held for the city and supplied a rationale for the discrimination as well: “We think it fairly may be said that as aliens as a class are naturally less interested in the state, the safety of its citizens and the public welfare, then citizens of the state, to allow them to operate motor buses would on the whole tend to increase the danger to passengers and the public using the highways.” ^{Footnote 58} Since there was, therefore, a basis for the discrimination between citizens and aliens, the ordinance was not unconstitutional. Of course, there is no reason that a lack of citizenship would affect one’s driving abilities. As one commentator noted critically, “the court appears to assume the point at issue, that is, that there is a causal relationship between allegiance and careful driving” (Alexander Reference Alexander1931, 113). Despite the lack of a rational connection, courts gave wide latitude to legislatures and city councils to make this determination.

By the late 1910s, anti-immigrant sentiment was at a new high, driven by the country’s entry into and exit from the First World War, fears of immigrant communist radicalism, and the growing obsession with restricting immigrant admissions to the country. The doctrinal groundwork had already been laid, through the regulation of alcohol and hunting, for the increasing use of state and local laws as tools of economic discrimination. Other nativist groups took up the licensing mission. Chief among these was the Ku Klux Klan, which heavily influenced state legislatures in Colorado and Oregon and cities throughout the Northeast and Midwest (Toy Reference Toy1962; Lay 2004). The Klan may have had somewhat more extreme viewpoints than the Audubon Society or the WCTU, but the group found legal recourse in the same place—by limiting noncitizen access to business and industry.

In Oregon, the Ku Klux Klan was influential in the adoption of a law by the state legislature in 1923 that barred cities from granting licenses to noncitizens in a wide range of occupations and activities, including operating pool halls and selling soft drinks. ^{Footnote 59} A Greek owner of a billiard room challenged this law. In its opinion upholding the state law, the district court, like others before it, hastened to first demonstrate that legislatures had the power to prohibit noxious industries. The court then posed a direct question about the alienage discrimination itself: “Is the classification without any real or substantial relation to the object to be served?” Here, the court provided its own answer since it could not find one in the law’s preamble or in the explicit legislative history: “It may be judicially known, however, that aliens coming into this country are without the intimate knowledge of our laws, customs, and usages that our own people have. So it is likewise known that certain classes of aliens are of different psychology from our fellow countrymen.” Because, therefore, the legislature likely had a “plausible reason,” the court refused to strike down the provision.Footnote ⁶⁰

Another Greek immigrant, Peter Miller, was barred from selling soft drinks at his restaurant in the city of Niagara Falls, New York, which had also seen a rise in Ku Klux Klan activity (Lay Reference Lay1995). Miller applied for a license to sell soft drinks at his restaurant, but the city denied his application based on a 1923 ordinance that barred noncitizens from this trade. Miller challenged the law but lost in the New York Court of Appeals, which declared that “it may reasonably be said that the welfare of the community will be best served by excluding from licensees such persons as are not so attached to the institutions of our country as to be in the class of its citizenry.” ^{Footnote 61} Greek immigrant Charles Balli was forced to shut down his business after he lost his challenge to Cincinnati’s 1918 ordinance denying noncitizens the rights to operate billiard halls, pool rooms, and bowling alleys. The Supreme Court of Ohio wasted little ink in denying Balli’s appeal. ^{Footnote 62} The court gave wide latitude to local police powers: “The authorities of Cincinnati are presumed to be more familiar with such local conditions than any foreign tribunal or court,” likening the city to an independent entity free to regulate however it sees fit. According to census data, by 1920, Balli had turned to a different line of work—namely, running a confectionary. (Fortunately for him, the city did not determine that the sale of candy required a showing of citizenship.)

The same attorney who represented Balli, George Hawke, tried again a few years later with a new client, George Clarke, who was a British citizen. Clarke, like Balli, was a noncitizen who sought a license to continue to operate a business—in his case, a billiard hall. Hawke argued that the city ordinance was in violation of the US treaty with Great Britain. This time, the case made it all the way to the US Supreme Court, which heard the case of Clarke v. Deckebach in 1927. ^{Footnote 63} Justice Harlan Fiske Stone noted that states and municipalities were permitted to regulate such places of amusement due to their “harmful and vicious tendencies” and that “alien race and allegiance” may bear sufficient relevance to the legislation to make it a permitted classification. Once again, as in Patsone and other alienage cases in this era, the court acted in a remarkably deferential manner: “It is enough for present purposes that the ordinance, in the light of facts admitted or generally assumed, does not preclude the possibility of a rational basis for the legislative judgment and that we have no such knowledge of local conditions as would enable us to say that it is clearly wrong.” ^{Footnote 64} In other words, it was enough that the state or local government might have some plausible reason, without even having to give one.

As Justice Lewis Powell of the US Supreme Court would critically remark decades later of the expansive reasoning in Clarke v. Deckebach, “[t]his easily expandable proposition supported discrimination against resident aliens in a wide range of occupations.”Footnote ⁶⁵ By the 1930s, restrictive licensing regimes were ubiquitous; every state had laws that restricted activities and occupations based on citizenship (Fields Reference Fields1933, 214). The initial efforts of progressive reformers to limit access to alcohol and guns spread not only to other forms of public work and the regulation of places of amusement but also to a wide range of other licensed trades and occupations; by 1933, Michigan, for example, barred noncitizens from professions as accountants, architects, engineers, lawyers, surveyors, teachers, members of the board of cosmetology, private detectives, promotors of boxing or wrestling matches, and salesmen in international firms. One had to be a citizen to be a real estate agent in New York and New Jersey, a taxidermist in Maine, a mining inspector in Illinois, Kansas, Montana, West Virginia, and Wyoming, and a boat puller in Oregon (Fields Reference Fields1933). State variation was common. Despite Michigan’s strongly worded condemnation in the Templar case of the restriction on barber’s licenses, for example, eight other states adopted citizenship-based restrictions for barbers, with no comparable push back from their courts. ^{Footnote 66}

Even the cases that pushed back most strongly against this tide of alienage restrictions still left plenty of room for economic exclusion. In the 1915 case of Truax v. Raich, for example, the US Supreme Court struck down Arizona’s state-wide ballot initiative known as the “Alien Labor Act,” which required any employer of more than five workers to employ at least 80 percent native-born or naturalized citizens.Footnote ⁶⁷ The majority opinion criticized the problematic breadth of the law, noting that it “covers the entire field of industry” and that it “is imposed upon the conduct of ordinary private enterprise.” Because of its breadth, the law encroached upon the “ordinary means of earning a livelihood” and was therefore unconstitutional. The court drew a direct connection between the federal power to control immigration and the application of state employment laws, noting that “the assertion of an authority to deny aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode.” ^{Footnote 68} The court acknowledged the nexus between the immigration power and alienage discrimination, highlighting the fact that regulations that are purportedly about state resources and state police power can function as restrictions of movement—that is, as immigration law.

Yet, at the same time, the US Supreme Court was careful to list out various areas where state action implicating alienage would be constitutional, such as in the distribution of the public domain or in regulating health and safety. The decision, while striking down the law at hand, reinforced what it called “the broad range of legislative discretion” in the area. As a result, the Truax decision had little impact on the licensing cases that followed. In fact, it was commonly cited by later courts in support of state police powers rather than as a limitation on them. While the court held therefore to the outer bound of no broad employment bans, it left wide latitude for states and municipalities to create strikingly different economic regimes for noncitizens using the tool of licensing. Despite the holding of Truax, this state variation was supported explicitly by the court in later cases. As Justice Pierce Butler stated in the 1923 alien land law case of Porterfield v. Webb, “[i]n the matter of classification, the states have wide discretion. Each has its own problems, depending on circumstances existing there. It is not always practical or desirable that legislation shall be the same in different states.”Footnote ⁶⁹ Such a statement made it clear that noncitizens would continue to be subject to variations in their rights depending on what state they lived in, despite the fact that they were admitted to the nation through a federal process that was supposed to have preemptive power over such state variation.

THE PERSISTENCE OF A DIFFERENCE

By 1930, it was clear even to casual observers that noncitizens faced a wide range of limitations on their access to the marketplace and the workplace, most of which had not been in place just a few decades before. Those assisting immigrants learned that they had to warn them about the expansive panoply of laws. In the Handbook for Immigrants to the United States, published by the Foreign Language Information Service in 1927, Marian Schibsby (Reference Schibsby1927) described the complex web of licensing restrictions new immigrants were bound to encounter when trying to find work. Noting that “the regulations vary in the different states and cities,” she cautioned immigrants to “inquire about the license regulations of the community in which he has settled, or plans to settle” so that he may avoid the possibility of arrest or fine (95). By 1939, New York City alone, Schibsby (Reference Schibsby1940) noted in a later study, barred aliens from multiple lines of work, including “junk dealers, dealers in second-hand clothing, organ grinders and other street musicians, peddlers, public porters, locksmiths and key makers, massage operators, expressmen, drives of public carts, drivers of dirt carts and taxicab drivers.” In addition, noncitizens were barred from operating “a bathing establishment, a bowling alley, a laundry, a shooting gallery, a newsstand,” among other related business (363).

Such laws had direct impacts on individual immigrants as well as on immigrant communities more generally. Regulations such as these not only prevented noncitizens from entering a particular line of work, but they also pushed current proprietors out of business since they did not include any sort of grandfather clause to allow current business owners to operate under the new licensing scheme. Social scientist and immigrant advocate Harold Fields (Reference Fields1933, 220) noted that these laws “create unwarranted hardships: aliens are thrown upon the charities for their support and often, their carefully built plans, so often constructive and economically advantageous, are shattered.” Some lost their businesses; some had to pay stiff fines; still others spent time in jail, like Gevino Ramirez, a forty-four-year-old Mexican laborer, who was sentenced to a year in the state penitentiary at San Quentin for possession of a small semi-automatic weapon, in violation of California’s law requiring citizenship for gun licenses. ^{Footnote 70}

Some immigrants could escape the operation of these laws by becoming citizens, but, for many, this path was made much more difficult, if not impossible, during the Progressive Era. In the early twentieth century, the federal government made significant moves to tighten up and control the process of naturalization, starting with the Naturalization Act of 1906.Footnote ⁷¹ The 1906 Act added for the first time an English language requirement to naturalization, significantly reduced the number of courts eligible to adjudicate applications, mandated that naturalization decisions be heard in open court (so that the government or others could challenge the judge’s decision), and required courts to record and investigate any discrepancies in the affidavits of the applicant and their required American citizen witnesses. These were added to the preexisting requirements that the applicant be at least eighteen years of age, have lived continuously in the United States for five years, be of good moral character, demonstrate attachment to the Constitution, take an oath of allegiance, and pay a fee. The 1906 Act also added statutory grounds for denaturalization, the process of stripping naturalization from an immigrant due to allegations of fraud or lack of allegiance. Due to these changes, naturalizations plummeted from an estimated one hundred thousand per year prior to 1906 to only 7,953 in 1907. The numbers eventually rebounded as the federal naturalization bureaucracy became more efficient, but it took years for them to return to prior levels (Weil Reference Weil2013, 15–21).

Even more drastically, naturalization was barred completely for immigrants of Asian descent. Chinese immigrants were explicitly barred from naturalization starting in 1878 (Parker Reference Parker2015, 151). Other Asian migrants were denied naturalization under the Naturalization Act of 1870, which limited the right to those who were either white or of African descent (López Reference López1996, 37–46).Footnote ⁷² Challenges to the racially discriminatory naturalization law failed to gain traction in the courts, and Asian immigrant claims to the status of whiteness were similarly denied.Footnote ⁷³ Thus, for Asian immigrants—as well as for those from other parts of the world who struggled with learning English, were accused of crimes or radical tendencies, lacked financial resources, or were not supported by citizen witnesses—naturalization was unobtainable, meaning that alienage discrimination was inescapable. They may have been admitted to the country, but they were never able to become full members of the polity, economy, and society.

To immigrants and their advocates, this disconnect between national admission and state discrimination proved highly frustrating. As Harold Fields (Reference Fields1933, 213) noted, “[t]hese foreigners are being denied the opportunity to work, despite the fact that they were legally admitted to this country and with the foreknowledge by the government, in most instances, that they would seek to earn their own living.” The editorial board of the Immigrants in America Review (1915, 5) referred to these laws as an “underhand method of discrimination,” a sort of bait and switch, as they described it: “We say to [the immigrant] when he comes in: These are the bars you must pass, this is the standard we set. Take them and make them and you are free to enter the land of liberty and opportunity. In reality we are not so sincere and are becoming each year less and less so. In our right hand we hold a welcome; in our left hand a club.” Fields implored lawmakers to take a different approach: “The philosophy of caring for one’s own—upon which tenet this form of discrimination is founded—must be modified, in occupational opportunities, to caring for all who are legally in our midst” (Fields Reference Fields1933, 221).

The idea of expanding the scope of those entitled to share in the goods of the workplace and marketplace did not take hold as a matter of federal constitutional law until the 1970s, when the US Supreme Court finally abandoned the “special public interest” doctrine and declared that noncitizens were a “discrete and insular minority,” meaning that any state or local laws that discriminated against them would be subject to strict scrutiny in the courts (Tirres, forthcoming). In the mid-1970s, the court declared unconstitutional two discriminatory licensing schemes: Connecticut’s law barring noncitizen attorneys and Puerto Rico’s prohibition on noncitizen engineers.Footnote ⁷⁴ It would seem, based on these holdings, that the courts had finally put a stop to using licensing laws to discriminate against noncitizens without a compelling interest.

Yet despite this significant turnabout in the doctrine, discriminatory licensing laws persist today. As recent work by legal scholars demonstrates, dozens of states still have citizenship-based occupational restrictions across a range of areas, despite their apparent unconstitutionality (Calvo-Friedman Reference Calvo-Friedman2014, 1597; Calvo Reference Calvo2017, 33; Olivas Reference Olivas2017, 65). These laws limit a wide range of professions and trades to citizens only, including animal breeder (Delaware), commercial fisher (South Carolina), pharmacist (Pennsylvania), psychologist (Tennessee), and video lottery operator (West Virginia), among many others (Olivas Reference Olivas2017, 154–64). More than twenty states contain alienage restrictions in their firearms laws (Gulasekaram Reference Gulasekaram2012, 622). Other jurisdictions have limited access to occupational licenses to legal permanent residents only, barring those who are lawfully within the country on temporary visas (also known as “nonimmigrant visas”) from accessing certain jobs. Circuits are split on whether this type of discrimination against temporary workers is constitutional (Seipp Reference Seipp2012, 1389).Footnote ⁷⁵

A significant number of jurisdictions have drawn the line not at citizenship or legal permanent resident status but, instead, at legality (Tirres, n.d.). Under these eligibility criteria, immigrants can only access those licensed activities if they can demonstrate that they are in the country with authorization. This turn to legal status as a licensing limitation raises a whole set of additional problems since state and local definitions of who is “legal” can vary widely, and immigration law is highly complex. As Justice Harry Blackmun noted in his concurrence in Plyler v. Doe, “the structure of immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported.”Footnote ⁷⁶ Yet this has not prevented states and municipalities from inserting this new qualification into a range of licensing provisions. Some of them—like anti-immigrant housing ordinances that require proof of legal status for an “occupancy license”—have been struck down by the courts as a violation of the Supremacy Clause, but others—like Arizona’s law withholding business licenses from those who are alleged to hire unauthorized immigrants—have withstood court challenge.Footnote ⁷⁷ These controversies demonstrate that the problems of discriminatory licensing continue, in forms both old and new.