Abstract: Reconsidering the Commerce Power in Trans-Atlantic Context: The Passenger Cases (1849)

Tony Freyer and Daniel Thomas


The Supreme Court's 5-4 decision in the Passenger Cases (1849) overturned two northern states' taxes on foreign immigrants. Eight opinions disputed whether destitute trans-Atlantic immigrants arriving in U.S. ports possessed a legal status of "persons" like fugitive slaves fleeing the South, free African Americans residing in the U.S.-Canadian borderlands, and black seamen working on ships entering southern ports. Locating the Passenger Cases within converging Irish Famine immigrant and antislavery crises, I argue that the Court's decision enforced divergent state-federal commerce power regulations that socially and constitutionally "embedded" in northern free states the police power status of "persons" possessing conditional civil rights and liberties. During the mid-nineteenth century, Karl Polanyi affirmed, liberals put forth the idea that markets were autonomous, 'disembedded' entities existing separate from government intervention and policies. According to Polanyi, however, legal and constitutional policies and laws "embedded" civil as well as market relations&#151;including particular distributional outcomes&#151;within society and institutions. Thus, Matthew J. Lindsay said, the "federalization 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 emancipation, and the industrialization of labor." The embedding of socially conflicted commerce-power questions in the Passenger Cases began in a trans-Atlantic context; the conflict became still more entrenched as slavery and foreign immigrant crises converged within Congress, the states, and lawyers' court-room arguments. As a result of the Court's ambiguous position in the Passenger Cases, each subsequent case became a new litmus test. The Court favored southern slave holders in the notorious 1857 Dred Scott decision; in <em>Ableman v. Booth</em> (1859) it overturned the Wisconsin Supreme Court's reliance on state police powers to defy federal enforcement of the 1850 Fugitive Slave Act. The failure of the Court to agree on a reason for its decision in the Passenger Cases cast southern state slavery laws into a growing shadow of conflicted contestation. Eventually, the constitutional cognitive dissonance inaugurated in the Passenger Cases collapsed when it became clear that free and slave theories of governance could not be sustained in one government, and the South seceded.