The Passenger Cases Reconsidered in Transatlantic Commerce Clause History

The Passenger Cases Reconsidered in Transatlantic Commerce Clause History TONY A. FREYER AND DANIEL THOMAS* The Supreme Court’s 5-4 decision in the Passenger Cases (1849) overturned two Northern states’ taxes on poor foreign immigrants. The Court’s eight opinions disputed whether destitute transatlantic immigrants arriving in U.S. ports were legally and constitutionally “persons” like fugitive slaves fleeing the South, free African Americans residing in the U.S.-Canadian border­ lands, and black seamen working on ships entering Southern ports. The eight opinions issued in the case, as Charles Warren noted, raised fundamental constitutional questions concerning whether U.S. congressional or state authority was exclusive or concurrent over persons moving in interstate and international business, reflecting wider sectional struggles fostering the Civil War.1 More recently, Mary Bilder and others examined connections among indentured contract labor, race-based American slavery, and the Court’s antebellum Commerce Clause decisions to establish that foreign immigrants were commercial objects subject to regulation through the Constitution’s Commerce Clause.2 Southerners and Northern pro-slavery supporters argued, however, that fugitive slaves and free blacks crossing interstate and international borders were “persons” who could be regulated or altogether excluded under state police powers.3 Locating the Passenger Cases within con­ verging foreign immigrant and antislavery crises, this essay argues that the Court’s de­ cision enforced divergent state-federal Com­ merce Clause regulations that socially and constitutionally “embedded” market relations and thereby undercut “persons” as com­ merce. During the mid-nineteenth century, Karl Polanyi affirmed, liberals put forth the idea that markets were autonomous, “disembedded ” entities existing separate from gov­ ernment intervention and policies.4 According to Polanyi, however, legal and constitutional policies and laws constituted or “embedded” market relations—including particular distri­ butional outcomes—within society, culture, THE PASSENGER CASES RECONSIDERED 217 and institutions. Regarding foreign immi­ grants, Matthew J. Lindsay argued, “The feder­ alization of immigration lawmaking between the first federal Passenger Act of 1819 and Congress’s assumption of full administrative control over the landing of immigrants in 1891 was deeply embedded in two epochal historical dynamics: slavery and emancipa­ tion, and the industrialization of labor.”5 The embedding of socially conflicted Commerce Clause issues in the Passenger Cases began in a transatlantic context; it became still more entrenched as slavery and foreign-immigrant crises converged within Congress, the states, and lawyers’ courtroom arguments, result­ ing in the Supreme Court’s eight opinions and sharply divided decision, undermining Union.6 I.The Passenger Cases-. Commerce Clause Issues in Transatlantic Context After a decade oflitigation, the Supreme Court considered the Passenger Cases amidst inten­ sified slave and immigrant crises during 184849 . Various Southern periodicals announced South Carolina Senator John C. Calhoun’s vote on March 20, 1849 for congressional funds to print more than 5,000 copies of the Court’s decisions regarding whetherNew York and Massachusetts taxes on shipmasters trans­ porting poor immigrants violated the Con­ stitution’s Commerce Clause.7 The preceding month, Daniel Webster, Massachusetts Sena­ tor and counsel for the immigrant-shippers in the case, noted in a letterthatthe “decision will be more important to the country, than any de­ cision since the steamboat [monopoly] case.”8 The March 7 Savannah Republican reported the argument ofNew York’s lawyer, John Van Buren, declaring the urgent need for a deci­ sion, “especially in reference to the poor dev­ ils who are now at Quarantine. The cholera is raging among them with fearful mortality, and it would be a consolation to their friends to know that they are dying constitutionally.”9 Reflecting these tensions, thePassenger Cases presented to the Supreme Court federal, state, and local governance issues testing the lawful status ofwhite foreign immigrants and African Americans under the commerce power, inter­ national treaties, and state police powers. Separate cases from Massachusetts and New York first arose from growing interna­ tional immigration. Since the late 1820s, the number of foreign immigrants arriving in U.S. ports increased steadily, testing the longstand­ ing policy presumption that regulationwas pri­ marily a state rather than a federal duty. At­ tempting to aid poor steerage passengers by imposing reasonable space and health condi­ tions aboard vessels arriving from continental European and British ports...

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