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Indentured Servants, Slaves, and Articles of Commerce, The Missouri Law Review Volume 61 Issue 4 Fall 1996 Article 1 Fall 1996 Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce, The Mary Sarah Bilder Follow this and additional works at: https://scholarship.law.missouri.edu/mlr Part of the Law Commons Recommended Citation Mary Sarah Bilder, Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce, The, 61 MO. L. REV. (1996) Available at: https://scholarship.law.missouri.edu/mlr/vol61/iss4/1 This Article is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Bilder: Bilder: Struggle over Immigration: MISSOURI LAW REVIEW VOLUME 61 FALL 1996 NUMBER 4 The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce Mary Sarah Bilder" A long time ago, but not too long ago, Ships came from across the sea Bringing Pilgrims and prayer-makers, Adventurers and booty seekers, Free men and indentured servants, Slave men and slave masters, all new- To a new world, America! -Langston Hughes' * Assistant Professor of Law, Boston College Law School. B.A. 1987, University of Wisconsin-Madison; J.D. 1990, Harvard Law School; A.M. (History) 1992, Harvard University. I thank Bernard Bailyn, Daniel Coquillette, Anthony Farley, Phyllis Goldfarb, Daniel Kanstroom, Ray Madoff, John T. O'Keefe, Aviam Soifer, and Carol Weisbrod. Above all, I thank my parents, Richard and Sally Bilder, for their advice and encouragement. Research for this project was supported by the Boston College Law School Dean's Fund. 1. Langston Hughes, Freedom'sPloiv, in THE COLLECTED POEMS OF LANGSTON HUGHES 263 (Arnold Rampersad ed., 1994). Published by University of Missouri School of Law Scholarship Repository, 1996 1 Missouri Law Review, Vol. 61, Iss. 4 [1996], Art. 1 744 MISSOURI LAW REVIEW [Vol. 61 TABLE OF CONTENTS I. INTRODUCTION .................................... 745 II. IMMIGRANTS AS INDENTURED SERVANTS ................. 751 III. INDENTURED SERVANTS ARE ARTICLES OF COMMERCE ........ 761 A. Transportation of IndenturedServants as a Commerce ..... 761 1. The Cultural Perception of the Commerce .......... 761 2. An Alternative Cultural Perception ............... 766 B. Entry Regulated as Commerce ..................... 771 1. Encouraging Importation ...................... 772 2. Discouraging Importation ..................... 773 C. Initial Efforts to Protect Passengers Regulated as Commerce 779 IV. INDENTURED SERVANTS AND THE WANING OF THE COMMERCE.. 781 A. The End of the Commerce ........................ 782 B. Immigrants as "Imports" or 'Migrants"................ 784 1. The Constitution ........................... 784 2. The End of the Convict Trade .................. 787 3. State Protective Regulation .................... 788 C. The Beginning of Immigration: The Federal Passenger Act . 790 V. IMMIGRANTS AS "ARTICLES OF COMMERCE"?-THE STRUGGLE .. 792 A. Gibbons: Almost an Assumption ................... 793 B. Miln: Hesitant Disagreement ...................... 799 C. Groves: The Reason for Disagreement-Slavery......... 807 https://scholarship.law.missouri.edu/mlr/vol61/iss4/1 2 Bilder: Bilder: Struggle over Immigration: 1996] STRUGGLE OVER IMMIGRATION D. The PassengerCases: Decisive Disagreement .......... 812 VI. IMMIGRANTS ARE "ARTICLES OF COMMERCE" ............... 819 I. INTRODUCTION People are articles of commerce, or so the United States Supreme Court held in 1941, emphasizing that the issue was "settled beyond question."2 At the time, Justice Jackson expressed some discomfort with the theory that "the migrations of a human being... [are] commerce."3 The Court, however, has not wavered from this analytical position. Indeed, like many legal constructs, it has inspired little reflection. Modem immigration law scholarship has been more interested in exploring the idea that immigration power is "an incident of sovereignty," than puzzling over people as articles of commerce. The inherent sovereignty or plenary power doctrine, however, was the second theory of immigration authority-not adopted until 1889.' For the first one hundred years, the Court debated the question of immigration power under the Commerce Clause. The consequences of this unsettled jurisprudence reappear in every constitutional law casebook: the classic line of commerce cases stretching from Gibbons,' through Miln,6 to The Passenger Cases.7 In 1876, the Court finally 2. Edwards v. California, 314 U.S. 160, 172 (1941) (striking down a statute making it a misdemeanor to bring nonresident indigents into state). 3. Id at 182 (Jackson, J., concurring). Jackson noted that such a theory could result in "denaturing human rights." He suggested using the privileges and immunities clause to protect interstate migrations of indigents. 4. Chae Chan Ping v. United States (The ChineseExclusion Case), 130 U.S. 581, 609 (1889). For most of the twentieth century the Court has followed this later theory. See THOMAS ALEXANDER ALEINIKOFF & DAvID A. MARTIN, IMMIGRATION PROCESS AND POLICY 15-16 (1985); DAvID WEISSBRODT, IMMIGRATION LAW AND PROCEDURE IN A NuTSHELL 49-51 (3d ed. 1992); Hiroshi Motomura, Immigration Law after a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545, 550-53 (1990); T. Alexander Aleinikoff, Federal Regulation of Aliens and the Constitution, 83 AM. J. INT'L L. 862 (1989). 5. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). 6. Mayor of New York v. Miln, 36 U.S. (11 Pet.) 102 (1837). 7. The PassengerCases (Smith v. Turner, Norris v. Boston), 48 U.S. (7 How.) 283 (1849). Constitutional historians still puzzle over-and now rarely read-the lengthy opinions of the nineteenth-century Supreme Court as the Court "groped for formulations with little clarity or agreement." GERALD GUNTHER, CONSTrTUTIONAL LAW 218 n.2 (12th ed. 1991). Leading constitutional law books consequently present snippets of these cases as obligatory reading for "early interpretations of the commerce Published by University of Missouri School of Law Scholarship Repository, 1996 3 Missouri Law Review, Vol. 61, Iss. 4 [1996], Art. 1 MISSOURI LAW REVIEW [Vol. 61 clause," old theories of federalism, or the claimed legitimacy of state restrictions on paupers and other undesired people. LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 404-5 (2d ed. 1988); see PAUL BREST & SANFORD LEVINSON, PROCESSES OF CONSTITUTIONAL DECISIONMAKING 127-40 (2d ed. 1983); GUNTHER, supra,at 217-18 n.1 1; JOHN E. NOWAK ET. AL., CONSTITUTIONAL LAW 134 nn.18-21, 264-66 (3d ed. 1986). Most articles discussing Miln and the line of cases stretching from Gibbons v. Ogden to the PassengerCases interpret the cases from the perspective of federal-state relations and powers. See, e.g., Christopher L. Eisgruber, Political Unity and the Powers of Government, 41 UCLA L. REV. 1297, 1328-30 (1994); William N. Eskridge, Jr. & John Ferejohn, The Elastic Commerce Clause: A PoliticalTheory of American Federalism,47 VAND. L. REV. 1355, 1373-74, 1397 (1994); Stephen A. Gardbaum, The Nature of Preemption,79 CORNELL L. REv. 767, 791-92 (1994); Peter J. Spiro, The States and Immigrationin an Era ofDemi-Sovereignties,35 VA. J. INT'L L. 121, 136-37 (1994); H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 VA. L. REV. 633 (1993); Alfred L. Brophy, Let Us Go Back and Stand upon the Constitution: Federal-StateRelations in Scott v. Sandford, 90 COLUM. L. REV. 192, 200, 214-15 (1990); Boris I. Bittker, The Bicentennial of the Jurisprudenceof OriginalIntent: The Recent Past, 77 CALIF. L. REv. 235, 245-46 (1989); Albert Broderick, "To Endurefor Ages to Come": A BicentennialView of the Constitution: From ConstitutionalPolitics to ConstitutionalLaw: The Supreme Court's First Fifty Years, 65 N.C. L. REV. 945, 949-50 (1987); David P. Currie, The Constitution in the Supreme Court: Article IVand FederalPowers,1836-1864, 1983 DUKE L.J. 695, 744 (1983); David P. Currie, The Constitution in the Supreme Court: Contracts and Commerce, 1836-1864, 1983 DUKE L.J. 471, 474-78, 503-4, 507-8 (1983). Even those writers who have noted these cases' relationship to slavery continue to view the connection from a federal-state powers perspective. See, e.g., Sanford Levinson, Slavery in the Canon of ConstitutionalLaw, 68 CHI.-KENT. L. REV. 1087 (1993); Paul Finkelman, The Color of Law, 87Nw. U. L. REV. 937, 974 (1993) (book review). One casebook also suggests that these cases and the "exclusive power" theory were "deeply influenced by the issue of slavery." The suggestion is advanced as the last note in a set discussing the "fundamental framework" of regulating commerce. GEOFFREY R. STONE ET. AL., CONSTITUTIONAL LAW 252-53 (1986). The most consistent attempt to connect the cases to slavery appears in Carl Swisher's volume for the Holmes Devise. See CARL B. SWISHER, THE TANEY PERIOD: 1836-64, at 327- 423, in particular, 359-60, 365, 378, 390, 395, 396 (1974). Swisher, however, concludes: [U]n the conflict ofpolitical theory between nationalism and localism slavery was only one of the critical factors. Immigration ...raised problems of its own, quite apart from the fact that lawmaking for transportation or exclusion of white alien passengers had implications for the transportation or exclusion of free Negroes and slaves. Id. at 396. In contrast to these discussions,
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