But, in the most interesting part of the opinion, Garcia held that the ban on any “policy” that “prohibits or materially limits the enforcement of immigration laws” is so broadly written that it would bar local officials from even criticizing state immigration policy—and thus almost certainly violates the First Amendment.

That brings us to Douglas, Lincoln’s foe in the 1858 Lincoln-Douglas debates. Douglas emerged victorious in the Illinois Senate race against Lincoln, then lost to him in the presidential election two years later. The “Little Giant” (5’4”) stood beside the 6’4” Lincoln and held his foe’s stovepipe hat at the Inauguration. Three months later he died of typhoid fever.

In the antebellum years, Douglas tried to thread the needle between the Northern and Southern wings of the Democratic Party, but, as the dispute heated up, he moved closer to what anti-slavery forces called “the Slave Power.” After John Brown’s anti-slavery raid on Harper’s Ferry in 1859, Douglas made his “Sedition Law” speech on the Senate floor. Southern states, citing the danger of “servile insurrection,” had long banned any internal criticism of slavery. Now Douglas proposed making the ban national, through a federal statute that would “suppress all conspiracies and combinations in the several states with intent to invade a state, or molest or disturb its government, its peace, its citizens, its property, or its institutions.” In other words, to guarantee the safety of the slave states, Douglas proposed outlawing the anti-slavery movement—and the Republican Party.

“The Harper’s Ferry crime,” he told senators, “was the natural, logical, inevitable result of the doctrines and teachings of the Republican Party.” Lincoln, he said, had warned that a “house divided against itself cannot stand.” Republican Senator William H. Seward proclaimed the clash between slavery and free labor “an irrepressible conflict” that would leave the nation all free or all slave.

Republicans were preaching disunion, Douglas said. The solution was to stop their mouths through “indictments and convictions” that “will make such examples of the leaders of these conspiracies as will strike terror upon the hearts of the others, and then there will be the end of this crusade.”

Lincoln warned in his Cooper Union speech that “Senator Douglas’ new sedition law” would suppress “all declarations that slavery is wrong, whether made in politics, in presses, in pulpits, or in private,” but the bill never advanced.

The Sedition Bill controversy is a particularly inglorious chapter in Douglas’s checkered career; but in factual terms he was right. An institution like human slavery can, in the end, be maintained only if government silences not only slaves but free people. By designating some humans as less than human—as holders, in Chief Justice Roger B. Taney’s phrase, of “no rights which the white man was bound to respect”—American society authorized warfare against its own people, and the brutality of that internal war inevitably spurred a reaction. The slaves bore the brunt of the war; but with the passage of the Fugitive Slave Act of 1850, it spread to ensnare free states. The Supreme Court’s Dred Scott decision served notice that even the concept of a “free state” might soon be struck down. Controls on speech would be the logical next step.