Kevin Kenny's "The Problem of Immigration in a Slaveholding Republic"

Kevin Kenny is Glucksman Professor of History and director of Glucksman Ireland House at New York University. He is the author of Diaspora: A Very Short Introduction (2013), The American Irish: A History, and Making Sense of the Molly Maguires (1998), among other books. President of the Immigration and Ethnic History Society, Kenny came to the United States as an immigrant in the 1980s.

He applied the "Page 99 Test" to his new book, The Problem of Immigration in a Slaveholding Republic: Policing Mobility in the Nineteenth-Century United States, and reported the following:

A reader who opens this book at page 99 will be thrown in at the deep end, yet in a way that gets to the heart of the argument. In the Passenger Cases (1849), the U.S. Supreme Court considered whether state laws imposing taxes or bonds on immigrants infringed on Congress’s power to regulate foreign and interstate commerce. States in the antebellum Northeast used taxes and bonds to raise revenue for the upkeep of the foreign poor. States elsewhere used similar measures—together with intimidation and violence—to restrict the admission of free Black people. In the Passenger Cases, five justices found the state immigration laws unconstitutional as violations of the Commerce Clause, four ruled that the laws were valid, and—in a welter of discord and confusion—they issued eight different opinions. On page 99, two of the dissenters, Roger Taney and Levi Woodbury, parse what seems like a technical point. When and where does an overseas voyage to the United States terminate? Taney argues that the voyage ends as soon as the ship arrives in a harbor within the territorial limits of a state, before the passengers have landed. Local power goes into effect at precisely this moment and Congress cannot prevent states from taxing passengers in ports within their own jurisdiction. Woodbury agrees. Local police power over immigration and federal power over foreign commerce, they conclude, are two different kinds of power, exercised by two different levels of government.

But why did this distinction matter so much in a slaveholding republic? Taney and Woodbury, both strongly proslavery, feared that Congress—once empowered to regulate immigration—could use its commerce power to regulate the mobility of free Black people and perhaps the interstate slave trade. These concerns explain why, in the second paragraph, Taney discusses the question of taxing American citizens traveling between the states, even though that question is not before the court. Having upheld the power of states to tax foreign passengers, he insists that they cannot tax or regulate US citizens crossing their borders. Taney believed that free Black people did not enjoy this freedom, because they were not citizens—a point he developed with devastating effect in the Dred Scott case (1857). States could therefore control Black mobility however they wished.

In these ways, to my surprise, the issues raised on page 99 capture the central themes of The Problem of Immigration in a Slaveholding Republic.

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--Marshal Zeringue