The following article by H. Robert Baker was originally published at Topics of Meta – Historiography for the Masses.
As everyone with a twitter feed already knows, Donald J. Trump is no friend of immigrants. In a spate of hot-headed executive orders this week, he slammed the door shut on refugees, banned visitors from seven Muslim countries, and promised to build a “Great Wall” physically separating us from Mexico.
But his wrath extended past Mexican day laborers and Muslim asylum seekers to take aim at the traitors within. In an executive jeremiad, Trump torched “sanctuary jurisdictions” for “willfully” violating federal law and causing “immeasurable harm to the American people and to the very fabric of our Republic.” To such harmers of the Republican Fabric he threatens to withhold all federal funds, excepting those “as mandated by law.”
Strong stuff. But before we all blow a collective gasket at boisterous threats from the White House or the defiant voices of Bill De Blasio and Rahm Emanuel in response, we ought to pause. After all, this is nothing new. The state and federal governments have always been at loggerheads, since virtually the first days of the Republic. This latest salvo is yet another chapter in the saga of American federalism and the structural ways that rights are defined and protected and—most importantly—contested.
The specific name “sanctuary cities” comes from 1980s protests against federal immigration policies that denied asylum to refugees from El Salvador and Guatemala. San Francisco led the way by passing a city ordinance in 1985 that specifically forbade city police or civil magistrates from assisting federal immigration officers. Other cities followed suit. So too did organizations not licensed by the state, like churches. One recalls the ferocity of Father Luis Olivares, pastor of La Placito in Los Angeles, who designated his church as a “sanctuary” for the poor, homeless, and the undocumented. More recently, sanctuary cities have pushed back against aggressive federal deportation under George W. Bush and Barack Obama. There are more than 300 jurisdictions (cities and counties) around the country that withhold cooperation from federal immigration officers today.
Trump’s executive order demands compliance from state governments. There is no hint of a carrot, although there is some queer language about it being Trump’s policy to “empower” local police (empower being a word I associate with snowflakes and leftists). The big stick is the withholding of federal funding, but the more surreal part is the manner in which this is done. The order allows the Secretary of Homeland Security to designate (at his discretion) a city or county as a “sanctuary jurisdiction” and the Attorney General has the power to deny such sanctuaries any federal moneys. The big prizes should be obvious—New York, San Francisco, Chicago, Los Angeles; blue cities full of people Trump fears and loathes.
Sanctuary cities actually have a long history in America that has always been bound up—in a good way—in the problem of American federalism. The sanctuary city was home to America’s first significant class of refugees—fugitive slaves. Petitions to the first meetings of Congress in the 1790s praised sanctuary cities and even sought federal protection for refugees. Slaveholders complained about it to no end, petitioning state and federal governments alike for stricter laws. The problem, claimed slaveholders, was that existing federal law (the Fugitive Slave Act of 1793) was insufficient to guarantee slaveholders their rights, protected explicitly by Article IV, Section 2 of the Constitution. Chief among slaveholders’ demands was that state officers (law enforcement, magistrates, and judges alike) be compelled to enforce the federal Fugitive Slave Act.
This was not an outrageous claim. The anemic federal government of the 1790s needed state help to enforce its laws. Congressional statutes assumed state cooperation, as did the Fugitive Slave Act of 1793. But by the 1810s and 20s, such cooperation began to look increasingly like coercion, especially to southerners who were making much of the sanctity of states’ rights. An attempt to revise the Fugitive Slave Act in 1818 led to failure, in part, because the proposed bill required state officers to enforce federal law. This violated contemporary understandings of dual sovereignty—the idea that federal and state governments were each sovereign in their sphere, and that the spheres were entirely separate. Congress might direct federal law enforcement officers and judges, but they could not direct state officers, and vice versa.
Increasingly, northern states began to provide instructions on how to handle refugees from slavery. States like Pennsylvania, New Jersey, and New York passed laws that attempted to balance legal protections for fugitive slaves with the constitutional claims of slaveholders. Slaveholders protested, claiming that the added burdens of legal process had the practical effect of delaying or denying them their constitutional right to their property.
And the Supreme Court agreed. In Prigg v. Pennsylvania (1842), the Court cemented the principle of dual sovereignty in constitutional law. Fugitive slaves (like immigrants and refugees today) were deemed a matter of federal, rather than state, interest. This meant that the states could pass no laws, whether ones protecting the legal rights of fugitive slaves or aiding in their removal. But on the same constitutional principle, the Court reaffirmed that Congress could not compel state officers to enforce federal law.
Prigg v. Pennsylvania proved a pyrrhic victory for slaveholders. States might not have been able to protect refugees from slavery, but they could, and did, withdraw state cooperation. This meant that city constables and county sheriffs were instructed not to arrest suspected fugitive slaves, that state jails were closed to federal marshals who had fugitives in their custody, and that state judges would refuse to issue warrants or certificates of removal. Into the breech stepped free blacks and their white abolitionist allies, who organized protective societies and became increasingly bold in their opposition to federal law enforcement. Sanctuary cities became like fortresses.
Congress responded in 1850 by passing a new Fugitive Slave Act that vastly increased the powers of federal marshals, judges, and commissioners specially appointed to handle fugitive slaves. The law was grossly proslavery and passed as part of a legislative package designed to paper over the fissures between North and South. It had the practical effect, however, of polarizing the country. Northerners set their teeth against the law. Citizens lent their homes and carriages to the protection of refugees. Vigilance societies outed slavecatchers, making it impossible for them to operate in secret. When a federal marshal nabbed fugitive slaves, hundreds (even thousands) of protesters turned out to the courthouses where they were held. Whole sections of Milwaukee, Chicago, New York City and Boston became no-go zones for slavecatchers. Federal attempts to enforce the law ran up against a simple numbers problem—they didn’t have enough boots on the ground to withstand massive popular resistance. Slaveholders simply said “I told you so.” They had always held that federal law was impotent without state support. They were right, and the southern states cited northern shielding of refugees from slavery in their declarations of the causes of secession in the winter of 1860-61.
It is deceptively easy to apply this bit of history analogically to our modern day sanctuary cities, to point out the connections between the slavecatchers of yore and Trump’s anti-immigrant minions today. After all, both hunted the weak and the vulnerable, both privileged law and order over individual liberty, and both laughed down humanitarian concerns. There are other similarities as well. Slaveholders and northern doughfaces condemned their opponents as bleeding hearts. They characterized fugitive slaves as dangerous criminals. And they generally reacted hysterically, exaggerating threats and otherwise ignoring reason.
But it is also grossly unfair to compare anyone in today’s politics to slaveholders. Such invidious comparisons can only be used to end conversations, not to engage in them. The real lesson, for today’s purposes, lies in the constitutional processes embedded in federalism. The use of state resources to frustrate federal power (and vice versa) is a perennial feature of our constitutional system. Southerners who resisted Brown v. Board of Education (1954) mobilized state institutions to oppose the federal government’s drive to secure equal access to educational institutions. Prolife activists have made a living out of commanding state resources to frustrate the enforcement of Roe v. Wade (1973). More recently, opponents of gay marriage have attempted to subvert Obergefell v. Hodges (2015) by unleashing the fury of Roy Moore and Kim Davis.
These are examples specifically cultivated to illustrate the political neutrality of “states’ rights” as doctrine. Its modern association with “massive resistance” to desegregation has tarnished it to liberal eyes. But sanctuary cities are cut from the same constitutional cloth—the very same that gave abolitionists the cover they needed to resist the Fugitive Slave Act. Sanctuary cities’ resistance to federal immigration law depends upon local popular support, legal and political assistance from the state, and a constitutional regime that respects the integrity of two sovereigns sharing the same space. And there is only so much that cities might do to oppose federal immigration law, such as instructing their police not to cooperate with ICE officers, tacitly ignoring immigration status of people they come across, and even actively disseminating information to undocumented populations about their legal rights.
At each point, resistance is bound by particular legal rules. Informing undocumented peoples of their legal rights is not quite counseling them to cause “immeasurable harm … to the very fabric of the Republic.” Tacitly ignoring the immigration status of people caught up in the justice system must work within the confines of congressional law and the Supreme Court’s prevailing interpretation of it. This is precisely what the northern states did in the 1850s to resist the Fugitive Slave Act. And it was conditioned further by northern judges, most of whom tenaciously enforced the law regardless of their personal beliefs about slavery. The same will be true when federal judges are asked to punish sanctuary cities on the dubious legality of an executive order that runs afoul of established constitutional law.
Politics and law are substitutes for violence, and we sometimes forget that this is their primary, everyday purpose. This is what makes American federalism such a frustrating, brilliant endeavor. The availability of multiple venues to protect or assert rights channels aggressive tendencies. People on the political left and right bemoan the grinding legal order as troublesome, wishing instead that their own vision of justice might be more easily imposed upon society. Fair enough. But whether you are advocating passionately for the rights of refugees or those of the unborn, there are people who oppose you and they have their rights too. American federalism has always been a conservative means for reducing both the propensity for tyranny—by allowing people to appeal to more than one power source to protect rights—and the potential for violence. After all, if there is no legal avenue to take, why not just blow stuff up?
Granted, American federalism has often been a vehicle for hegemony and the oppression of those who disagree. Examples abound. Southern states violently imposed Jim Crow segregation in the southern states in the 1890s in plain violation of the Fourteenth Amendment, yet the federal government demurred. The federal government interned American citizens of Japanese descent during World War II without so much as a squawk from the states. But the measure of success for establishing liberty in any constitutional system cannot be a demand for perfection. We should instead look for real structural ways in which law and politics can work to protect constitutional rights at the same time that politicians advance their policies.
We see that same principle at work right now. Trump’s executive order menacing sanctuary cities gave voice to a significant number of Americans who believe that strict enforcement of immigration law is vital to national security. Fine. For those who disagree, there are plenty of avenues open to them for muscular constitutional resistance. And this is not causing “immeasurable harm … to the very fabric of our Republic.” It is the fabric of our American Republic.
H. Robert Baker is an associate professor of History at Georgia State University and the author of The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (Ohio University Press, 2007) and Prigg v. Pennsylvania: Slavery, the Supreme Court, and the Ambivalent Constitution (University Press of Kansas, 2012). His current research explores the influence of historical consciousness on constitutional thinking, as well as the nature of constitutional change over time.
 Executive Order: “Enhancing Public Safety in the Interior of the United States,” January 25, 2017. White House, Office of the Press Secretary. Sec. 1 (preamble) and Sec. 2c. https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united
 “Enhancing Public Safety in the Interior,” Section 9a.