Comment: States’ rights argument on border echos slavery battle

By Sean Kim Butorac / For the Chicago Tribune

In November, the Texas legislature enacted Senate Bill 4 to empower state law enforcement to arrest suspected undocumented immigrants. First-time offenders face six months of imprisonment, while second-timers can be incarcerated for up to 20 years.

Texas prisons are already overcrowded, inhumane spaces. During last year’s heat wave, more than 40 prisoners died when temperatures in some prisons skyrocketed above 130 degrees. Undocumented immigrants would have to choose deportation to avoid these conditions.

Though framed in racially neutral terms, S.B. 4 is unmistakably racist. Like earlier laws, S.B. 4 would authorize further racial profiling of Latinos — including citizens and permanent residents — by law enforcement, well beyond the border.

S.B. 4 is a disastrous rejection of settled law. Historically, immigration enforcement has been a federal power, and the Supreme Court has affirmed this position. This tracks with the vision of the Framers, who anticipated the federal government should regulate the nation’s borders.

For now, the law is unenforceable, no thanks to the Supreme Court. The court’s conservative majority refused to issue a temporary stay, despite S.B. 4 defying the court’s own precedent. As Justice Sonia Sotomayor dissented, S.B. 4 “upends the federal-state balance of power that has existed for over a century, in which the National Government has had exclusive authority over entry and removal of noncitizens.”

S.B. 4 was only temporarily restrained when a lower court sided with Las Americas Immigrant Advocacy Center, the organization challenging the law. Yet Texas has not only disrupted a centurylong balance of powers. Its attempt to nullify federal law echoes the conflict over slavery that drove the Civil War.

A startlingly similar conflict unfolded in summer 1822, when South Carolinians discovered plans for a massive uprising by free and enslaved Black people. Led by Denmark Vesey, a freedman, thousands of free and enslaved Black people would have swept across the countryside and into Charleston, from where the group planned to sail for Haiti.

The uprising was discovered and brutally suppressed. After a summer of kangaroo court trials, 35 Black men were executed, two died in custody (likely from torture) and 37 were exiled. Thus tragically ended one of the largest, most elaborate uprisings in U.S. history. After the trials, state lawmakers enacted the 1823 Negro Seamen Act. The law restricted the immigration of all Black seamen into South Carolina by blaming them for the uprising.

Black sailors, lawmakers argued, smuggled in radical ideas of freedom that were a contagion causing a moral pestilence among enslaved people. To contain these ideas, the law required that all Black sailors be detained at the ship’s expense. If the captain refused or failed to pay, the cost was recuperated by declaring the Black sailor an absolute slave and selling them.

The reality, of course, was that enslaved people resisted because they were enslaved, a fact lawmakers ignored. Much like the figuration of Black sailors as a moral contagion, Texas lawmakers have framed undocumented immigration as an actively unfolding, “complete and total invasion.” In both cases, the law dehumanizes people of color to uphold a democracy committed to white supremacy.

Within the year, the Negro Seamen Act was declared unconstitutional by Supreme Court Justice William Johnson in Elkison v. Deliesseline (1823). Anticipating the court’s landmark ruling in Gibbons v. Ogden (1824), Johnson held in even stronger terms that South Carolina had violated the federal government’s sovereign right to regulate commerce. Yet state officials defied Johnson’s ruling and continued to enforce the state law. In a resolution drafted by a state senator from South Carolina, the legislature proclaimed that an individual state’s power to suppress insurrections was “paramount to all laws, all treaties, all constitutions.”

This claim posed a grave risk not only to the nation but also to the state’s economy. Charleston was a hub, particularly for the slave trade: More than 40 percent of enslaved people were trafficked through Charleston.

Similar to South Carolina, Texas lawmakers ignore that undocumented immigrant laborers, including child labor, make up 8 percent of the state’s workforce and are integral to its booming economy. Through racist practices of detainment and deportation, South Carolina risked a diplomatic and economic crisis, much like Texas does today.

South Carolina’s actions had far-reaching consequences. Identical laws were passed in North Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana and Texas. Similarly, today, other states have begun to follow Texas’ example. Lawmakers in Oklahoma, Kansas, Louisiana and Missouri are considering similar bills, and Iowa has already enacted a similar law.

South Carolina’s act of nullification hardened its commitment to states’ rights with the intent of preserving slavery. It was the Vesey affair and the struggle over immigration and slavery that “lit a fuse to Fort Sumter,” the first battle of the Civil War.

It remains to be seen whether the Supreme Court will uphold S.B. 4 and continue its trend of supporting racist policies, eroding voting rights, turning back civil rights and diminishing the federal government’s power. Likewise, if S.B. 4 is overturned, it is unclear whether Texas will abide by the rule of law or attempt to nullify the federal government’s power.

That we find ourselves at another pivotal moment — one in which white supremacy is cloaked in the language of states’ rights — does not simply echo the past. It serves to remind us that slavery still casts a long shadow over American politics and that our commitment to an inclusive, multiracial democracy remains fragile at best.