The northern nullification of the fugitive slave acts stands as one of the best examples of state resistance to federal actions, both from a practical and moral standpoint. Northern efforts proved particularly effective, and it’s nearly impossible to knock northern abolitionist nullifiers off the moral high ground they claimed.
But when invoking personal liberty laws that thwarted fugitive slave rendition as examples of effective nullification, somebody will invariably protest, arguing that the fugitive slave acts were perfectly constitutional. And therefore, state resistance against them was wrong and a bad example for the nullification movement today.
Resistance to fugitive slave acts began in the early 1800s and picked up dramatically after passage of the Fugitive Slave Act of 1850. The draconian nature of the measures passed by Congress that year galvanized resistance across the north. Nearly every northern state passed some type of personal liberty law. Provisions varied from state to state, but included denying slave catchers the use of state facilities such as jails, guaranteeing jury trials for accused fugitives, and imposing punitive actions on state or local officials aiding in fugitive slave rendition.
Those arguing northern states were wrong to attempt to nullify the fugitive slave acts point to Article IV Sec. 2 Clause 3 of the Constitution.
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
On the surface, opponents of personal liberty laws appear to stand on solid ground. The Constitution clearly required the return of runaway slaves. But a closer look at the Fugitive Slave Acts of 1850 reveals several constitutionally dubious provisions, despite the requirements in Article IV.
The most glaring constitutional problem with the Fugitive Slave Act of 1850 was its denial of due process. A fugitive was returned south on the word of any white person. The accused was not even allowed to present evidence in his own defense. This clearly violates the Fifth Amendment.
No person shall be…deprived of life, liberty, or property, without due process of law.
Unless you want to argue black people weren’t “persons,” (and this is pretty much what the federal courts ultimately did) an accused fugitive had a right to an actual trial. As it stood, the Fugitive Slave Acts stripped all rights from a black person on the mere presumption he was a slave. He was presumed guilty and had no way to prove himself innocent.
The Bill of Rights was added to provide “further declaratory and restrictive clauses” and place additional restrictions on federal power. That means that even while exercising legitimate powers, the federal government cannot violate the rights spelled out in the Bill of Rights. The Fifth Amendment trumps Article IV Sec. 2 and meant that an accused fugitive had a right to due process before being delivered back into bondage.
In fact, one of the driving forces behind personal liberty laws was the number of free blacks kidnapped and forced into slavery. Under the Fugitive Slave Act, they had no recourse. They started under the presumption of guilt, and the process made it impossible to prove otherwise. Northern states sought to remedy that evil.
A second argument revolved around vesting commissioners and magistrates with judicial power to issue certificates of removal – essentially the authority to judge cases and render verdicts. The Constitution vests judicial authority “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The fugitive slave act granted judicial power in court appointed commissioners. These officers generally handled arrests and bail, and were not judges. Abolitionists argued they were never intended to wield actually judicial authority and that the Fugitive Slave Act of 1850 violated Art 3 Sec. 1 of the Constitution. While certainly a murkier legal argument than due process, abolitionist lawyers did make a case that the Fugitive Slave Act improperly vested judicial powers in lesser officers.
Finally, opponents of the Fugitive Slave Act argued that while the Constitution required the return of runaway slaves, Article IV Sec. 2 did not confer power on Congress to pass fugitive slave laws enforcing the provision. In the absence of a specific delegation of power to Congress to legislate, abolitionist lawyers argued that under the Tenth Amendment, it was up to each state to create a process for fugitive slave rendition.
Fugitive Slave Act opponents in the north pointed out that Article IV Sec. 2 lacks an enabling clause, while the full faith and credit clause; the admission of new states, territories clause; and the guarantee clause in Article IV all featured a provision specifically enabling Congress to act.
Historian H. Robert Baker explains the abolitionist argument in Prigg v. Pennsylvania: Slavery, the Supreme Court, and the Ambivalent Constitution.
Following the common law rule of expression “unius est exclusion alterius” (express mention of one thing excludes all other not on the list), then omission (of an enabling clause) was intentional and should be read as such. Given that the Tenth Amendment reserved to the states all power not expressly granted the federal government, it followed that only the states could legislate fugitive slave laws.
In simple terms, abolitionists argued that while there was a constitutional obligation to return fugitives to their “owners,” it was the prerogative of the state government to create the process facilitating rendition – not Congress. And authority included the right of the state to provide protections and due process for its free black citizens.
So, despite the fugitive slave clause in the Constitution, opponents of the fugitive slave acts stood on solid ground in challenging the constitutionality of the Fugitive Slave Acts.
Constitutionality Really Didn’t Matter
But even if you reject their constitutional arguments, northern states still stood on solid ground in their refusal to cooperate with enforcement of the fugitive slave acts. The constitutionality of the acts was important from a rhetorical standpoint, and their perceived illegitimacy galvanized public support, but it was not the determining factor in validating state action. Simply put, northern states were under no obligation to cooperate with the federal government.
The Supreme Court actually affirmed this in an early fugitive slave era ruling. In Prigg v. Pennsylvania (1842) the Court ruled Congressional lawmaking on fugitive slave rendition was a constitutional exercise of power, but it also asserted the feds could not force the states to enforce federal law. Justice Joseph Story wrote for the majority.
The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution. [Emphasis added.]
The Supreme Court has expanded on this idea in recent years, developing the anti-commandeering doctrine. Under this principle, the Court rightly has held that the federal government has no authority to force states to implement or enforce federal acts or regulations.
So, a state does not have to depend on a constitutional determination to refuse cooperation with the federal government. When it denies the federal government the use of state agents or resources, it acts under it sovereign authority. That was the general strategy adopted by northern states during the fugitive slave era, and it remains a valid approach today.
James Madison laid out the blueprint in Federalist 46, long before Story made his ruling. Addressing opponents of ratification of the Constitution concerned that the federal government would ignore limits on its power, Madison listed “refusal to cooperate with officers of the union” as one method to check federal power. Notice that he did not limit state action to unconstitutional acts.
Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand.
The northern abolitionists resisting the fugitive slave acts stood on solid constitutional ground. Their arguments against their validity were solid. They claimed even higher moral ground. Who can argue that sending men and women into bondage was morally acceptable, even if legally so? But we don’t have to rely on these arguments alone to justify northern nullification actions. The American system was designed to ensure states would check on federal power. Without something restraining it, the notion of limit government becomes a farce. No institution will remain self-limiting.
Northern nullification of the fugitive slave acts provides us with a blueprint to limit federal power today. We do not have to obediently submit to every act of Congress. States can simply refuse to cooperate or provide material support when the federal government overreaches its authority or simply passes bad law. As Madison insisted and the northern abolitionists demonstrated, these actions can “present obstructions which the federal government would hardly be willing to encounter.”