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Today in the Transformation of the Party of Lincoln to the Party of Calhoun

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I’ve gotten some pushback in various social media about my argument that Antonin Scalia is wrong to assert that the state of Arizona has an inherent “sovereignty” over its borders comparable to that of a nation state. (Harold Meyerson has more on this point.) What is Scalia’s evidence? Adam Serwer notes the key passage in Scalia’s dissent:

Notwithstanding “[t]he myth of an era of unrestricted immigration” in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted crimi¬≠nals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. State laws not only pro¬≠vided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.

It’s important to understand that these unattractive examples of state power were, even before the Civil War, examples of raw power without any evident constitutional warrant. It is true that the great Chief Justice John Marshall didn’t overturn laws banning free blacks from entering southern ports. But this was not because he believed they were constitutionally defensible, but because (as he wrote his colleague Joseph Story) he was not fond of “butting his head against a wall in sport.” The bans were illegal, Marshall believed, but a federal court order against them would simply be ignored. Given that Congress is given the power to “establish an uniform Rule of Naturalization” and to conduct foreign policy, and that Marshall’s landmark opinion in Gibbons v. Ogden permits states to legislate in areas of federal jurisdiction only indirectly and if state laws do not conflict with federal ones, Marshall’s conclusion that the practices cited by Scalia were never constitutionally authorized seems unassailable. And this remains true even if the Supreme Court of his time lacked the practical authority to impose this judgment on the states.

But for the sake of argument let’s assume that Marshall was wrong and John Calhoun was right, and states had the power to exclude classes of people from their borders during this time period. There’s a bigger problem for Scalia’s argument: the Civil War and the constitutional amendments that arose from it. The Fourteenth Amendment makes nonsense of Scalia’s claim that states have an inherent authority to control their borders comparable to nation-states. The Fourteenth Amendment makes state citizenship an automatic adjunct of national citizenship defined by the amendment itself and by Congress. And its “privileges and immunities” clause, even in the excessively narrow construction given to it by the Supreme Court, contains a right to travel. State governments, in other words, completely lack the power to define citizenship and exclude people that defines sovereignty in the sense Scalia is discussing it. The state resolutions from the late 18th century criticizing the Alien and Sedition Acts cited by Scalia are simply not relevant to the new constitutional order created by the Civil War. The Fourteenth Amendment makes Scalia’s already dubious claims transparently wrong.

In the contemporary federal system, states retain some limited aspects of “sovereignty,” but contrary to Scalia these are not comparable to the sovereignty of a nation-state and do not include an inherent right to control state borders. An argument based on this premise will inevitably fail. Although I shouldn’t criticize Scalia, or Congress might pass two statues banning D&X abortions…

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