For all the screeching about Arizona’s new immigration law, you would think that this is a new question: may a state enforce federal immigration law? I know better than to predict how the U.S. Supreme Court will decide this question, but if we look to history, this should be easy. We have plenty of examples of states enforcing immigration laws that were actually stricter than federal immigration law. Before I tell you about some of these examples, however, it might be good to explain the context of this first set.
When the Philadelphia Convention drafted the U.S. Constitution, one of the great struggles was concerning slavery. Slavery had no friends at the Convention — even though a large minority of the delegates owned slaves. Slavery was an embarrassment — one that even slave owners hoped and assumed would go away in a generation or two. That’s part of why the word “slave” never appears in the Constitution. Instead, we get terms such as “bound to service” that include not only slaves, but also indentured servants and apprentices.
When Charles C. Pinckney, one of South Carolina’s delegates to the Philadelphia Convention, returned home to lobby for ratification, he was besieged with complaints about how the new Constitution did not have a Bill of Rights. (It was added later.) Pinckney explained the lack of a Bill of Rights in the new Constitution by saying that “such bills generally begin with declaring that all men are by nature born free. Now, we should make that declaration with a very bad grace, when a large part of our property consists in men who are actually born slaves.” The best that the slave states could manage out of the Philadelphia Convention was a guarantee that the new national government would not prohibit the importation of slaves for at least twenty years (Art. I, sec. 9, cl. 1).
There was nothing that prevented state governments from banning the importation of slaves — and by 1808, when Congress prohibited the importation of slaves, only South Carolina still allowed slaves to be brought in from abroad. Until 1808, federal law allowed the import of slaves. The states were actually imposing a stricter immigration standard than federal law. If anyone challenged the constitutionality of these state immigration laws about slaves, I haven’t seen it mentioned. By comparison, Arizona is merely enforcing existing federal immigration law.