Sandra L. Rierson (Thomas Jefferson School of Law) has posted Fugitive Slaves and Undocumented Immigrants: Testing the Boundaries of Our Federalism (University of Miami Law Review, Forthcoming) on SSRN. Here is the abstract:
Political conservatism has traditionally been associated with the ideology of states’ rights and local control, at least since the pre-Civil War era. The South’s dogged quest to protect the institution of slavery during the antebellum period illustrates this phenomenon. Although traditionally associated with a states’ rights philosophy, during this era the South dominated the federal government and relied heavily on federal power to preserve slavery in the South and enable its spread throughout the territories. The battle over fugitive slaves, for example, pitted the federal Fugitive Slave Act of 1850, which granted Southerners broad powers to reclaim human “property” in free states, against free states’ personal liberty laws, which sought to protect the civil and human rights of all state citizens, including the free Blacks and slaves who were at risk under the federal law.
The illusory nature of states’ rights as a governing philosophy is also apparent today. As the center of power in Washington D.C. shifts right with the Trump administration, proponents of states’ rights are increasingly found in left-leaning Blue states, not the conservative Red states typically associated with demands for local control. As with the Fugitive Slave Act, efforts to increase enforcement of federal immigration laws have engendered conflict between federal and local governments. Some states and municipalities have declared themselves “sanctuaries” where local citizens can live without fear of federal immigration raids. President Trump, who has previously decried federal government overreach, has vowed to force states and localities to bend to the federal will. These shifting allegiances illustrate that curtailing the scope and power of the federal government is not a fundamental tenet of any political party, but a rhetorical means to an end.