Ben Darlow and Charlie Eastaugh*
Talk of “sanctuary cities” has become flavour of the day in recent months, with a growing interest in their legality and—to the contrary—the unconstitutionality of federal attempts to attack such havens (as demonstrated by a January 2017 Executive Order, analysed by Garett Epps here). Volokh Conspiracy bloggers at the Washington Post have provided insightful commentary in line with the growing interest in this complicated area of constitutional law, including a helpful overview from Ilya Somin here, and executive order analysis here. This week David Post cited the English Legal History Blog, in arguing that the moniker “sanctuary” is misapplied and misleading. We will attempt to support such a claim in more detail.
Contemporary American legal context
Decades-old Supreme Court precedent gives us constitutional context for this issue. First, New York v. United States (1992) made clear that the 10th Amendment prevents “commandeering” of state governments to enforce participation in federal regulatory programmes. This was applied to the criminal context in Printz v. United States (1997), where a 5-4 majority led by the late Justice Scalia held unconstitutional certain provisions of the Brady Handgun Violence Prevention Act on similar anti-commandeering grounds.
In NFIB v. Sebelius (2012)—as helpfully flagged by Somin—federal funding conditions with the effect of such commandeering are also unconstitutional. In sum, cities (or even full states) are free to operate in a way that rejects federal cooperation, especially with respect to immigration policies and legislative requirements such as that contained in Section 1373 of the United States federal code (8 U.S.C. § 1373). Section 1373 mandates cooperation between states and the federal Immigration and Naturalization Service, and the January 2017 Executive Order has threatened to attach funds to that requirement. Making funding conditional on such strictures is likely to engage a constitutional question under the 10th Amendment (as outlined above), the 4th Amendment’s protection against unreasonable searches and seizures, and the 14th Amendment’s due process clause, which have been held applicable to “persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”
The English common law privilege of Sanctuary was born out of principles that pre-date the common law itself. The basis, definition, and limitations of Sanctuary lead to the strong conclusion that the semantics of naming US immigration havens as “sanctuary cities” is at best misleading and ill-founded. At worst, it severely muddies the waters of discussion, preventing serious analysis in this important area. Appreciating the origins of common law Sanctuary is therefore vital to understanding contemporary use of the term.
Origins of Ecclesiastical Sanctuary
St. Augustine of Rome’s successful conversion of the Saxons to Christianity in the 6th Century AD introduced the idea of ecclesiastical Sanctuary to the ruling Saxon King, Aethelbert. In 597 AD—in support of his newly-adopted religion—Aethelbert introduced severe penalties for interrupting the peace of the Church. Clearly, the concept of Sanctuary at its English origin was, and remained to be until its abolition, an ecclesiastical principle and a creature of the Christian Church.
Sanctuary’s original intention in these earliest times was to protect a criminal from the devastating impact of vigilante justice at the hands of his own family and friends—fundamentally opposed to the contemporary notion of an asylum-seeker, who is likely to find refuge with those close to them. Sanctuary was used to nullify the blood feuds that wreaked havoc in Saxon communities and itself interfered with the pre-cursor to sovereign jurisdiction. William the Conqueror—upon his successful conquest of Saxon England in 1066—adopted many of the Saxon laws already in place, including those of Sanctuary. Later Norman Kings continued to support this privilege without controversy.
Around 1250, English common law was clear: a criminal could take Sanctuary in Churches; other consecrated ground; or even within the confines of a consecrated cemetery—it was fundamentally an Ecclesiastical privilege. If the fleeing criminal had no physical ground in which to take refuge, his Sanctuary began as soon as he placed his hand on the Church door. At this time, Sanctuary was still intended to give the common law legal process sufficient time to effectively run its course and not to provide indefinite refuge to criminals. It was a requirement for the criminal to admit his guilt—again drawing a stark contrast with any modern engagement of the term.
Indeed, it was a settled common law principle in the 13th Century that Sanctuary should last no longer than 40 days. After that period had ended, the Church was no longer allowed to provide food to the criminal and the authorities seeking the criminal hoped this would starve him out of his Sanctuary. Any person providing sustenance after the 40 days could be convicted as an accessory to the criminal’s original crime. Thereafter, the criminal had three options open to him. One, he could surrender, two, be exiled from the country at the escort of the authorities, or three: flee to another Sanctuary to begin a fresh 40 day limitation period. The extent to which this Sanctuary-hopping occurred is unclear, but certainly the privilege of Sanctuary was open to abuse.
Over the next two centuries, due to abuses of Sanctuary, English public opinion developed to view the practice as the Church openly harbouring criminals. There are even instances of criminals in London successfully running their nefarious activities from within the confines of a Sanctuary. This abuse of Sanctuary was abhorrent to the English public and was seen as far removed from its original intentions as a safe haven from vigilante justice.
Sanctuary was later diluted in 1504 when King Henry VII successfully asked Pope Innocent VIII to allow the authorities to enter Churches and apprehend a criminal when they committed a fresh crime whilst taking Sanctuary. This was an attempt to curb the abuses mentioned above. Henry VIII followed in his father’s footsteps and initiated further reforms. A significant case in 1519 involving St. John’s Priory and Westminster Abbey (two large sanctuaries) challenged the remit of Sanctuary for murder and other heinous crimes. Henry was moved to state that: “I will have [Sanctuary] reformed which has been encroached by abuse, and brought back to the true intention of the makers”.
In 1540, the English Parliament abolished the use of Sanctuaries for the worst crimes such as murder, rape, and arson. It had already been abolished for High Treason. Following these restrictions, Henry VIII established eight Sanctuary cities where approved asylum seekers had to remain permanently. These national Sanctuaries quickly fell out of use in the reign of Henry’s son, Edward VI, in the mid-16th Century.
During his reign, Henry VIII attempted to restrict the use of Sanctuary by making it unappealing for criminals. A Sanctuary seeker had to wear a 10-inch badge on their upper arm, often had to adhere to a curfew, and had to be branded with an ‘A’ on their right thumb. A 16th Century Sanctuary became something much more closely aligned with a gulag than a haven of respite: not something the Constitutional Framers would transpose over a century later.
Following continued controversy, negative public opinion and the numerous restrictions outlined above, Parliament finalised the reform in 1624 by passing a Statute that stated “no Sanctuary or Privilege of Sanctuary shall be hereafter admitted or allowed in any case”. Plainly, 150 years prior to American Independence, the English principle of Sanctuary had been diluted into obscurity, with the original concept of a place of haven long consigned to the annals of history, excluded from the common law.
It is worth noting at this juncture that there was no mention of Sanctuary Cities (or anything like them) in the 85 Federalist Papers, nor in the 1787 Constitutional Convention. Although the Founders did describe the Capitol as a “sanctuary of liberty” and Jefferson remarked that it would be the nation’s “first temple”, no illusions were made as to the importance of federalism, the notion that states’ rights were fundamental to a successfully operating Republic, and the separation of Church and State.
As the foregoing outline has shown, the common law principle of Sanctuary is an English ecclesiastical principle deriving from early Christianity. Its status as a bargaining chip between the Church and the State in the 15th and 16th Centuries led to its ultimate abolition as a common law practice, far removed from its haven-providing origin. The Philadelphia Convention of the late 18th Century included an emphatic decision to separate the Church from the State, with the Union founded on this secular basis. According to long-standing judicial precedent it is plainly unconstitutional under the republican Constitution for the federal Government to commandeer sovereign state cities for its own bidding in an unfettered way. Contemporary American usage of the term “sanctuary cities”—as has become de rigeur in modern political discourse—cannot be divorced from the historical (originalist) underpinnings of the term “Sanctuary”. To do so causes injury to tenets of federalism, constitutional law, and endangers the secularity of the debate.