I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Justice Scalia’s “looming specter of inutterable horror”– his dissent in Arizona v. United States

As a sovereign, Arizona has the inherent power to exclude persons from its territory

-Justice Scalia’s dissent in Arizona v. United States

Justice Scalia’s dissent in the Arizona illegal alien law case harkens back to a simpler time in America, when local governments were left alone to decide who could and could not come there.

He brings to mind a time when a town like Siloam Springs, Arkansas was free to ban blacks from its city limits, like many other “sundown towns” across America.

The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons… according as he may think it advantageous to the state.

-Scalia again, quoting a 1758 treatise.  Notice that nice use of “he” to denominate the sovereign, a little touch I’m sure Justice Scalia found endearing.

A time when everyone recognized that only the propertied or well-to-do were entitled to the privileges of citizenship.

The Articles of Confederation had provided that “the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States.”

-Scalia again, quoting the Articles of Confederation, and reminding those among us with a somewhat more liberal bent why we are relieved to be rid of them.

When the State of California was free to set up a “bum blockade” to keep out undesirables, a term that meant people from Oklahoma, Arkansas and Texas.

Notwithstanding “[t]he myth of an era of unrestricted immigration” in the first 100 years of the Republic, the States enacted numerous laws restricting the immigra- tion of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. Neuman, The Lost Century of American Immigration (1776–1875), 93 Colum. L. Rev. 1833, 1835, 1841–1880 (1993).

-More from that Scalia dissent.

When the national government would enact legislation titled  “An Act to prohibit the ‘Coolie Trade’ by American Citizens in American Vessels,” designed to ban Chinese immigration (Congress’s first attempt at, to borrow a phrase, immigration reform)

 As this Court has said, it is an “ ‘accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.’ ” Fong Yue Ting v. United States, 149 U. S. 698705(1893) (quoting Ekiu v. United States, 142 U. S. 651659 (1892) ).

-Scalia, quoting with apparent approval a case upholding the “Coolie Trade” act as to two Chinese immigrants, and another case involving a Japanese immigrant.

Justice Scalia does note that all good things have not been lost with the passage of time.

([Unlike America,] some countries, for example, have recently discovered the death penalty to be barbaric)

-Yes, seriously, Scalia writes this in the opinion, and makes clear his disgust for “some countries.”

One reading his dissent comes away with the sense that the author looked back with sadness and even anger at the loss of a time when states were free to exclude lowlifes, blacks, and Okies, and when the sovereign was not thought of as some general demos but was denominated as “he.”

It is worth noting that, when this opinion came down, Justice Scalia was not the only one having that kind of a day.

Is it true that our society is inexorably evolving in the direction of greater and greater decency? Who says so, and how did this particular philosophy of history find its way into our fundamental law?

-from Justice Alito’s dissent in Miller v. Alabama.

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