Is Deporting Immigrants the Same as Returning Fugitive Slaves?

In the current issue of National Review, Mark Krikorian explains how the entire state of California has become a sanctuary for illegal aliens, with state and local government agencies barred from notifying ICE that they have an immigrant in custody or from cooperating with immigration-law enforcers in any other way. This policy amounts to a massive defiance of federal law, one that Krikorian compares to the nullification crisis of 1832.

That battle occurred after Congress enacted a tariff that southern states viewed as outrageous and punitive. South Carolina passed an ordinance purporting to nullify the tariff within the state, and things got pretty heated for a while; but the crisis ended with South Carolina backing down, after President Andrew Jackson made clear that he would enforce the law and Congress softened the tariff’s terms.

The question of states’ acquiescence to federal laws that they strongly oppose has come up repeatedly in U.S. history. South Carolina is generally thought to have been on the wrong side in 1832, and after Brown v. Board of Education (1954), the South’s massive resistance to integration was unquestionably wrong. On the other hand, in the 1970s and 1980s, after a nationwide 55-mph speed limit was decreed, various states found ways to get around it through half-hearted enforcement, and most observers today agree that they were justified in doing so.

A closer precedent for California’s current defiance on immigration can be found in the Fugitive Slave Act of 1850. It was part of that year’s congressional compromise package, intended to settle the sectional issues that had arisen in the aftermath of the Mexican War. California, newly won from Mexico, was going to be admitted as a free state, which infuriated southern slaveowners. The North had to give something in return, or else secession and war would be real possibilities. A federal act allowing the recapture of slaves who escaped to free states had been on the books since 1793, but its enforcement provisions were weak. The new act required local officers in free states to capture, hold, and return escaped slaves, with no jury trial allowed, and it imposed fines up to $1,000 on those who refused to cooperate.

Unlike slaves, illegal immigrants enter the U.S. by their own free will, often in spite of strenuous efforts to keep them out, and they do so knowing the consequences that they may have to deal with someday.

The 1850 act was widely ignored or disobeyed in the North. Wisconsin and Vermont passed acts to nullify it within their borders, while in Massachusetts and elsewhere, large crowds assembled and released captured fugitives from custody. Hardly anyone today would say the northern states wrong to do this, even with the prospect of a bloody disunion looming. To capture an escaped slave, bind him in irons, and send him back to a lifetime of forced labor is too much to expect of anyone with a conscience.

You can see how a California sanctuary proponent could cite the Fugitive Slave Act as a precedent:

Sending an undocumented alien back to his country of origin is unthinkable, just like sending an escaped slave back to the South in the 1850s. To be sure, nothing is as cruel as slavery, but the same principle applies. If forced to return, an alien can face murderous gangs and militias and be forced into back-breaking labor in stifling heat for miserable compensation with no real choice of where to work, all to benefit wealthy white oligarchs. And worst of all will be the loss of any hope that he can make a better life for the next generation.

There is just no reason why Person A, however idle he may be, should be entitled to remain while Person B, however much he may contribute to the community, is forced to leave, simply because of an accident of birth — just as being born to an enslaved mother should not have prevented anyone from enjoying the freedom we all deserve as humans. I will not allow my state’s government to be drafted into enforcing such a cruel and arbitrary policy.

This argument overlooks several obvious differences between 1850 and today. To begin with, slaves who escaped to the North usually were not criminals, whereas under today’s immigration policy, a state informs ICE about an alien in its custody only when that alien has been arrested by local police. In addition, unlike slaves, illegal immigrants enter the U.S. by their own free will, often in spite of strenuous efforts to keep them out, and they do so knowing the consequences that they may have to deal with someday.

But the biggest difference between these two cases of states’ disobeying federal law in service to higher principle is that slavery was an overwhelming and unmitigated moral evil, so cruel and horrific that it outweighed all other obligations of citizenship. Immigration control, by contrast, is a basic and universal function of government, one whose enforcement may seem unfair in individual cases but as an overall policy is indispensable for a nation’s survival. And glossing over this distinction accounts for the basic problem that underlies our current troubles: Too many people, in California and elsewhere, think that immigration control correctly belongs in the same category as slavery.