Free Black Exclusion Laws and Illegal Immigration

I haven’t posted anything here in a few months because I’ve been studying for my comprehensive exams, but when the Supreme Court of the United States starts talking about southern states excluding free black immigration and residency in the Old South, I guess that means it’s time to start writing again.

As you surely know already, the Supreme Court, in a 5-3 majority decision, struck down three of the provisions of Arizona’s harsh immigration law, while upholding what many consider the most controversial part of the law, the provision allowing law enforcement officials to demand proof of immigration status, the “show us your papers” provision.  Some are viewing this as a “reasonable accommodation of various views.”

Justice Antonin Scalia, in partial concurring opinion, argued yesterday that the entirety of Arizona’s strict immigration law should have been upheld.  Justice Scalia attempted to support this opinion, in part, by noting that during the antebellum period, southern states passed various immigration and residency restrictions on “freed blacks.”  Scalia is right to draw parallels between the situation of undocumented immigrants in the twenty-first century U.S., and free blacks during late eighteenth and early nineteenth, but for a completely different reason.

Free blacks have long fascinated historians as the seeming anomaly of southern race relations, and have gained increasing scholarly attention since the 1960s and 1970s.  Since that time, however, scholars have noted that these laws, which barred free blacks from residing in, or immigrating into almost every southern state, were only intermittently, if ever, enforced; rather, free blacks continued to live, and sometimes prosper, in southern states, establishing deep, lasting ties to communities across the South.

While these laws represented the legislative concretization of a racist ideology that viewed people of color as a threat to the stability of slave societies, they were rarely used to forcibly deport free blacks from southern states, or to deny them residency.  Instead, free blacks frequently performed menial labor that whites felt was too dirty or too demeaning, especially in urban areas.  They cut hair, they laundered and mended clothes, and they served as housekeepers and personal servants; they worked as painters, carpenters, and day laborers.  Some free blacks found wealth and success through mastering a skilled craft, laying the foundation for the black entrepreneurship that would prove so crucial in 20th century; most did not.  Because they provided such crucial labor to the southern economy, and perhaps more importantly, because they were able to establish individual, personal relationships with whites in southern communities, free black exclusion laws were almost never enforced in the Old South.  As Melvin Patrick Ely notes in his 2004 study of a particularly stable community of southern free blacks in antebellum Virginia, “many southern whites felt secure enough to deal fairly and even respectfully with free African Americans partly because slavery still held most blacks firmly in its grip.  That paradox helped make room for a drama of free black pride and achievement to unfold in an Old South where ties of culture, faith, affection, and economic interest could span the barrier between black and white.”[1]

A class of citizens legally barred from residence, permitted to live there anyway because they perform labor essential to the local economy, and establish significant ties to the community that mitigate more abstract aversions to their residency.  If that sounds familiar, it should, and it points to the great irony in Scalia’s citation of such laws.  Perhaps his citation of these laws at the state level is in fact sufficient legal precedent to uphold the Arizona law in its entirety; I’m not a legal scholar, and I will gladly defer to someone else on that aspect of this issue.   I even agree with him that immigration in America’s past is more complex than the “‘[m]yth of an era of unrestricted immigration’ in the first 100 years of the Republic,” that is often presumed; Scalia, however, simply replaces one myth with another myth by citing the immigration and residency restrictions placed on free people of color.  Much of the last forty years of scholarship has demonstrated how and why these laws were rarely enforced, and that they represented little more than an abstract, racist ideology that viewed people of African descent as a menace to society, and incapable of surviving in freedom.  Maybe this is the United States to which Justice Scalia would like to return. The fact that these laws can in any way still be relevant legal precedent shows how much the United States has really evolved in the last 200-some-odd years, it emphasizes that the idea of a post-racial America is truly a myth, and it highlights the continued importance of the study of history.

Oh, and self-deportation? Yeah, the Old South had that too: “Self-Enslavement Laws: Introduction and Initial Historiography Review.”

[1] Melvin Patrick Ely, Israel on the Appomattox: A Southern Experiment in Black Freedom from the 1790s Through the Civil War, (New York: Knopf Press, 2004). For additional reading, see: Ira Berlin, Slaves Without Masters: The Free Negro in the Antebellum South, (New York:  Pantheon Books, 1974); Michael P. Johnson and James L. Roark, Black Masters: A Free Family of Color in the Old South, (New York: W. W. Norton & Co., 1984); Juliet K. Walker, The History of Black Business in America: Capitalism, Race, Entrepreneurship, Volume I, to 1865, Second Edition, (Chapel Hill: University of North Carolina Press, 2009).  These are only four among an enormous and extensive historiography on the complicated history of free blacks in the Old South. (go back)

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