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
More information is available here.
“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