FACT: standing outside in the cold won’t cause you to catch a cold.
I know you might find it hard to accept that mom was wrong. But she was. Viruses cause colds, and the fact that people tend to congregate inside and have closer contact with each other in the winter accounts for the uptick in sickness between late fall and early spring.
The notion that getting cold causes a cold falls into the category of “conventional wisdom.”
Conventional wisdom can give us a great deal of insight into the world around us. It often rests on a foundation of time-tested experience. But it can also lead us badly astray – like assuming staying warm will prevent the common cold. Oftentimes, mere repetition of a “fact” endows it with an aura of truth. As a result, we should always take a somewhat skeptical view of conventional wisdom. The notion that “everybody knows such-and-such is true” can often obscure outright fabrications.
For instance, everybody knows supporters of slavery depended on states’ rights. Right?
WRONG.
In fact, it took strong, centralized power in D.C. to create, sustain and protect the institution of slavery.
Nevertheless, conventional wisdom inextricably ties state sovereignty, state rights and nullification to slavery. Most Americans believe this narrative. As a result, opponents of decentralizing the U.S. system, use the slavery issue as a club to bludgeon “states’ rights” advocates into submission. Many Americans won’t even consider returning authority back to the states, nullifying unconstitutional acts, or talking about state sovereignty, because they don’t want anything to do with the slavery associations.
In truth, the nationalists and centralizers own slavery’s legacy.
NEED FOR CENTRAL POWER
Slavers understood they needed a powerful centralized authority to protect the institution even before the Constitution was ratified. In fact, powerful South Carolina Philadelphia Convention delegate Charles Pinckney presented a plan for the new government early on. It was overshadowed by James Madison’s Virginia plan and got little attention. But like Madison’s vision, Pinckney yearned for a strong central authority. Historian H. Robert Baker points out that the South Carolina delegation “proved among the most trenchantly nationalist during the secret convention and public ratification debates.”
Pinckney left no doubt as to his feelings on “state sovereignty” during the Convention.
“The idea, which has so long been falsely entertained of each being a sovereign State must be given up he said, “For it is absurd to suppose there can be more than one sovereignty within a government.” Pinckney contended that the states would retain “nothing more than mere local legislation.”
Pinckney and many of his southern delegates recognized a strong national government was necessary to maintain an environment friendly to their economic interests, and those interests intertwined with slavery.
The nationalists didn’t get what they wanted in the Philadelphia Convention. As ratified, the Constitution limited federal power, and left most authority to the states and the people. But southern interests did succeed in constitutionalizing slavery, explicitly in Article 4 Sec. 2, the fugitive slave clause.
From the moment of ratification forward, southern slavers would rely on federal power and centralized authority to enforce the fugitive slave clause and maintain the institution of slavery, even as free northern states appealed to their state sovereignty to protect their black citizens.
Congress passed the first fugitive slave act in 1793. It dictated that the ‘owner’ of an escaped slave could “seize or arrest” the fugitive and take him before either a federal judge, or a city, county or town magistrate. “Upon proof to the satisfaction of such Judge or magistrate,” the official was required issue a certificate of removal. Oral or written testimony by the ‘owner’ or his agent was sufficient proof. The act also provided penalties for anybody interfering with fugitive slave rendition.
Notice that it required federal power to return slaves back into bondage.
STATE RESISTANCE AND PRIGG
Many northern states passed liberty laws, specifically meant to protect free blacks from kidnapping. These state laws generally acknowledged federal authority, but added additional conditions dictated by the state. Some required jury trials, others set up additional proof requirements before removing a fugitive from the state. Northern lawmakers argued that while the Constitution required the return of fugitive slaves, state sovereignty meant they had the authority to impose their own conditions to protect the basic rights of their citizens. Slavers vehemently disagreed and constantly agitated for more federal intervention to protect their “property interests” from state interference.
Pennsylvania was on the forefront of personal liberty legislation designed to protect black citizens. The state legislature passed an anti-kidnapping bill in 1820 and strengthened it in 1826. Supporters invoked the idea of state sovereignty to defend the legitimacy of the legislation.
“Does it much conduce to the honour as a sovereign state that any individual should exercise the privilege of entering our territory and seizing any negro, perhaps a Citizen, detaining him in custody, and finally dragging him before a Judge, and all this without proof or process of any kind?” asked bill sponsor William Meredith.
Things came to a head in Pennsylvania in 1842 when a fugitive slave case went all the way to the Supreme Court.
At issue was the snatching of a woman and her child from Pennsylvania by Maryland slave catchers. Margaret Morgan lived free in Pennsylvania for many years after her ‘owner’ set her free. But he never formally manumitted her, and his widow eventually decided she wanted to reclaim her ‘property.’ When Prigg took Morgan and her child back to Maryland, he failed to follow the procedures in Pennsylvania’s personal liberty law. The state eventually served Prigg with an arrest warrant for kidnapping. He asserted the Fugitive Slave Act of 1793 trumped Pennsylvania s law, and held that the state had no authority to interfere with his slave rendition.
On an interesting side-note, the child was born in Pennsylvania and technically free. The Court never even considered this aspect of the case. Morgan and her child both disappeared – likely sold further south.
Revered nationalist Justice Joseph Story wrote the majority opinion. He agreed with Prigg. Story held that Congress had the sole authority to legislate in the matter of fugitive slave rendition, and state governments couldn’t interfere in any way. This prohibition of state action included state laws designed to protect free blacks from kidnapping.
It was a mighty blow to state sovereignty and a victory for slavers. They were assured that the federal government would bring its full force and power to bear to protect their institution.
Simply put, fugitive slave rendition depended on federal backing.
Story used the case to extend federal power in another way. Story held that states had the authority to order their state officers to refuse to participate in fugitive slave rendition, essentially leaving the issue exclusively in federal hands. In other words, Story cared more about nationalism and extending federal power then he did about protecting the rights of black people.
Story claimed he was not creating any general rules of interpretation in Prigg, but he clearly intended to expand federal power. A letter Story wrote to Georgia Senator John Macpherson Berrien lends credence to this assertion. He suggested that the federal government should step up its general provision for law enforcement and allow federal judges appoint commissioners to act in all cases where federal law was currently left to state officers. Baker points out, “Story specifically mentioned to the Georgia senator that these commissioners could handle fugitive slave cases, a clear carrot to bring a slave holder in line with expanding federal authority.”
Essentially, Story used slavery to expand federal power. As Baker put it, “Story was elevating his nationalist jurisprudence on the backs of fugitive slaves.”
The institution of slavery needed national power to survive, and ardent nationalists were more than happy to sacrifice the rights of blacks for the opportunity to expand Washington’s authority.
FOLLOW UP: MORE STATE RESISTANCE
The Prigg decision ultimately led to the even more draconian Fugitive Slave Act of 1850. The new law explicitly denied the accused any due process rights.
In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evidence; and the certificates in this and the first [fourth] section mentioned, shall be conclusive of the right of the person or persons in whose favor granted, to remove such fugitive to the State or Territory from which he escaped, and shall prevent all molestation of such person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.
It also compelled citizens to assist in fugitive slave rendition if ordered to do so and applied stiff penalties to anybody interfering with slave catchers. Finally, the act created a bounty system, requiring payment of federal marshals, their deputies and court clerks.
In all cases where the proceedings are before a commissioner, he shall be entitled to a fee of ten dollars in full for his services in each case, upon the delivery of the said certificate to the claimant, his agent or attorney; or a fee of five dollars in cases where the proof shall not, in the opinion of such commissioner, warrant such certificate and delivery, inclusive of all services incident to such arrest and examination, to be paid, in either case, by the claimant, his or her agent or attorney.
Notice the incentive.
Once again, we see federal power vigorously applied for the benefit of slavers to preserve their institution and protect their ‘property.’ Ardent nationalists had no problem with this application. Outspoken nationalist Daniel Webster supported the act.
Northern states rebelled. Asserting state sovereignty, they passed aggressive personal liberty laws to thwart execution of the act. In support of their stand, apologist appealed to the notion of “states’ rights,” sometimes directly quoting arguments advanced by John Calhoun during the “Nullification Crisis” spurred by southern resistance against the “Tariff of Abominations” in the late 1820s and early 1830s.
For example, the Michigan legislature passed its personal liberty law in 1855. The Michigan Personal Freedom Act guaranteed any man or woman claimed as a fugitive slave, “all the benefits of the writ of habeas corpus and of trial by jury.” It also prohibited the use of state or local jails for holding an accused fugitive slave, and made it a crime punishable by a fine of $500 to $1,000. Finally, it made any attempt to send a freedman south into slavery a crime.
Every person who shall wrongfully and maliciously seize, or procure to be seized, any free person entitled to freedom, with intent to have such person held in slavery, shall pay a fine of not less than five hundred nor more than one thousand dollars, and be imprisoned five years in the State Prison.
This provision made it necessary for a fugitive slave claimant to abide by the state process, or risk prosecution as a kidnapper.
The Vermont personal liberty law went even further, essentially declaring any fugitive free.
Every person who may have been held as a slave, who shall come, or be brought, or be in this State, with or without the consent of his or her master or mistress, or who shall come, or be brought, or be, involuntarily or in any way in this State, shall be free.
These personal liberty laws elevated state sovereignty above federal authority, and asserted the right and duty of a state to reject unconstitutional acts In order to protect the basic rights and liberties of their people. Northern states simply ignored the Supreme Court opinion in Prigg and interposed for arresting the progress of the evil that was the Fugitive Slave Act of 1850.
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It took centralized power to maintain a system of slavery in the United States. It was the Constitution itself that cemented slavery into the American system, and it was federal power that preserved and sustained it. Nationalists used slavery to expand federal power, and slavers depended on the nationalists to protect their interests. Story, Webster and many others willingly obliged.
Northern abolitionists championed state sovereignty. They ignored Supreme Court opinion, defied federal authority and nullified the fugitive slave acts.
Of course, Southern interests also appealed to states’ rights when politically convenient. South Carolina famously nullified the “Tariff of Abominations.” This reveals just how deep the concept of state sovereignty roots itself in the American system. But slavers did not argue state sovereignty to protect their “peculiar institution. “ In fact, Southern states condemned nullification when they seceded.
Centralized, nationalized power was friendly to the slaver, and he embraced it with abandon.
When it comes to slavery and states’ rights, the conventional wisdom is wrong. Perhaps it’s time to hang the racism sign around the centralizer’s neck.
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