New from the University Press of Kansas:
The Passenger Cases and the Commerce Clause: Immigrants, Blacks, and States’ Rights in Antebellum America (December 2014), by
Tony Allan Freyer (University of Alabama). The Press explains:
In
1849 Chief Justice Taney’s Court delivered a 5-4 decision on the legal
status of immigrants and free blacks under the federal commerce power.
The closely divided decision, further emphasized by the fact there were
eight opinions, played a part in the increasingly contested politics
over growing immigration and the controversies about fugitive slaves and
the western expansion of slavery that resulted in the Compromise of
1850.
In the decades after the Civil War federal regulation of
immigration almost entirely displaced the role of the states. Yet, over a
century later, Justice Scalia in Arizona v. US appealed to the
era when states exercised greater control over who they allowed to
cross their borders; a dissent which has returned the Passenger Cases to
the contemporary relevance. The Passenger Cases provide a
counter-history that allowed the Court to affirm federal supremacy and
state-federal cooperation in Arizona I (2011) and II (2012).
In The Passenger Cases and the Commerce Clause
Tony Allan Freyer focuses on the antebellum Supreme Court’s role
prescribing state-federal regulation of immigrants, the movement of free
blacks within the United States. The divided opinions in the Passenger
Cases also influenced the immigrant and slavery crises which disrupted
the balance between free and slave-labor states, culminating in the
Civil War. The states did indeed enact laws enabling exclusion of
undesirable white immigrants and free blacks.
The 5-4 division of the Court anticipated the better known, but even more divisive, views of the Justices in the Dred Scott
case (1857). And in considering the post-Reconstruction evolution of
new standards by which to judge immigration issues, the Passenger Cases
revealed the continuing controversy over how to treat those who wish to
come to our country, even as federal law came to dominate the regulation
of immigration. These issues continued to complicate immigration law as
much today as they did more than a century and a half ago. The
persistence of these problems suggested that a “decent respect to the
opinions of mankind” continued to demand a coherent, humane, and more
consistent immigration policy.
A few reviews:
“This volume has a special importance as the current
conservative Supreme Court continues to struggle with defining state
police powers in regard to newly arrived and illegal immigrants. This
brief but pithy volume reinforces an often forgotten distinction between
the antebellum Constitution and the “new” Constitution of post-1870
America.”—Herbert A. Johnson
“In his comprehensive treatment of the Passenger Cases,
Tony Allan Freyer deftly situates the decision at the intersection of
the political and legal disputes over slavery, immigration, and federal
power.”—Earl Maltz
More information is available
here.
