Daniel Webster neatly summarized the subject of this book in a letter to a friend: “I wish I had a better account to give of this tedious and laborious case” (p. 85). Although Tony Freyer offers an exhaustive account of the origins, contents, and possible impacts of the Passenger Cases (Smith v. Turner, Norris v. Boston, 48 U.S. 283 (1849)), he failed to convince me that these cases constitute much more than a mildly interesting historical footnote.

In a nutshell, the Passenger Cases highlight the tension between federal powers and states' rights that was so much a part of antebellum America. This tension played itself out against a backdrop of the immense increase in immigration to the United States during the 1840s. From an annual average of less than 15,000 immigrants in the 1820s the yearly number escalated to more than 70,000 between 1832 and 1846 and then to nearly 335,000 between 1847 and 1854. Individual states were responsible for the welfare of immigrants (p. 7); in response to the huge influx of foreigners arriving at their ports, New York and Massachusetts imposed a head tax on incoming passengers—who were often paupers—to raise funds to support the local hospitals and almshouses that succored them (Chapter 1). Although the 1837 Supreme Court case of New York v. Miln distinguished between persons who were subject to state police power and commerce that was federally regulated, it left open the question of what constituted a legal person. Did immigrants, slaves, and free blacks count? Or did the head tax violate the commerce clause? If so, and the federal government held sway over immigrants, did it also regulate the treatment of slaves and free blacks? As Freyer puts it (several times), where did commerce power end and police power begin (pp. 2, 38, 65, 162)? The death of Supreme Court Chief Justice John Marshall left these questions in the hands of Roger Taney and his associate justices.

Freyer refers to a number of pivotal historical cases (as well as the Irish potato famine) in the first three chapters of the book. These cases include Gibbons v. Ogden (1824; in which the Court clarified that Congress has exclusive power over interstate commerce but that state regulations regarding quarantine and the use of local pilots are permissible (p. 15)), Groves v. Slaughter (1841; in which the Court determined that Mississippi's ban on the importation of slaves did not violate the commerce clause (Chapter 2)), and the License Cases (1847), which had to do with states' abilities to tax and regulate liquor sales within their borders (Chapter 3).

Chapter 4 gives us the multiple opinions in the Passenger Cases. For different reasons, five justices agreed that the head tax on immigrants disrupted commerce and was thus unconstitutional (pp. 89ff). The remaining four—also with varying reasons—argued that persons and commerce were distinct and that a state could control which persons were permitted entry into the jurisdiction. In doing so, the dissenters put themselves in the odd position of classifying slaves as persons rather than items of commerce. Chief Justice Taney stressed the dangers associated with allowing free blacks and undesirable white immigrants to enter states freely (p. 100). In a confusing passage, Freyer suggests that the cases led to better shipboard conditions for suffering passengers but then says that the law was not really enforced (pp. 102ff). In fact, although the court invalidated the use of landing fees, it allowed states to continue regulating immigration via bonds and other instruments—meaning that the cases were an unlikely agent of change.

The final chapters purport to show the influence of the Passenger Cases on subsequent political and legal developments, including the Compromise of 1850 (pp. 109ff), the policies advocated by the Know-Nothings (pp. 121ff), the treatment of Chinese immigrants in California (pp. 125ff), the immigration laws passed after WWI (p. 147), and the recent Arizona cases involving illegal immigrants (pp. 154ff), particularly Justice Antonin Scalia's dissenting opinion. Professor Freyer claims that “[T]he divided opinions of the Passenger Cases suggested an enduring institutional independence [of the Court]” (p. 2) and proposes that the cases provide a “perceptive … look at the complexities of government control … that has remained important in present times” (p. 7).

Personally, I am more inclined to agree with a different legal scholar. As David Currie writes in The Constitution in the Supreme Court: The First Hundred Years (University of Chicago Press, 1992), “Unlike its predecessors, the Taney Court certainly could not be accused of deciding major constitutional cases without writing sufficiently lengthy opinions. Rather, it submerged the unhappy reader in a torrent of verbiage; the Justices [wrote] nearly two hundred [pages] in the Passenger Cases without providing any meaningful guidance for future controversies (230).”

In short, the opinions in the Passenger Cases expose the deep rifts in the antebellum United States, and we have Professor Freyer to thank for his painstaking dissection of these cases. The issue of federal supremacy remains timely as some states devise new laws to grapple with illegal immigrants and border security. But wading through the Passenger Cases—or any analysis of them—requires considerable stamina on the part of the reader.