“Find out just what the people will submit to and you have found out the exact amount of injustice and wrong which will be imposed upon them; and these will continue until they are resisted with either words or blows, or with both. The limits of tyrants are prescribed by the endurance of those whom they oppress.”
–Frederick Douglas

In 1850, Congress passed a Fugitive Slave Act. The Constitution made the return of runaway slaves to their “owners” the law of the land. The Fugitive Slave Act of 1850 created the mechanism.

Many northerners considered the act draconian. Abolitionists nicknamed it the “Bloodhound Law.”  It clearly violated the most basic right to due process.

All it took to drag a black man south into slavery was a declaration by an “owner” that the individual was in fact an escaped slave. The accused enjoyed no right to a jury trial and he was specifically prohibited from testifying in his own defense.

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.

All a white southerner had to do was swear an affidavit attesting to his “ownership” of a black man, and federal marshals would organize a posse, grab the accused runaway slave, and detain him. In essence, it was state sanctioned kidnapping.

After a hearing, in which the alleged slave didn’t even have the right to defend himself, the “owner” could take accused runaway south into servitude. Slave holders drug more than one legitimately free black citizen south into slavery under the powers of the Fugitive Slave Act.

The act also empowered slave commissioners to compel citizens to assist in the capture of runaway slaves, and provided for fines of $1,000 and up to six months prison time for anybody aiding an alleged runaway.

Instead of simply submitting to federal authority and quietly participating in constitutionally dubious fugitive-slave roundups, northerners aggressively resisted the Fugitive Slave Acts. Officials in northern states did everything within their power to thwart enforcement of the acts, including denying federal agents the use of state and local jails, and even impeaching state officials who lent support to fugitive-slave claimants. Legislatures in Vermont, Connecticut, Rhode Island, Massachusetts, Michigan, Maine, Kansas and Wisconsin passed personal liberty laws, making it much more difficult to enforce the fugitive slave acts in those states. These laws were varied but generally guaranteed basic due process rights for accuse runaways. In some cases, these laws extended habeas corpus, provided for jury trials for accused runaways and harshly punished false testimony. Along with legislation designed to thwart the Fugitive Slave Acts, state officials turned a blind eye to the Underground Railroad and sometime actively assisted, allowing thousands of runaways the opportunity to escape to freedom.

These men and women stood up and refused to comply with an unconstitutional federal act, despite the fact that the Supreme Court held personal liberty laws unconstitutional back in 1842.

Today we laud these Americans – these nullifiers – as heroes.

Provisions in the National Defense Authorization Act passed earlier this month could prove as dangerous to the liberty of some Americans as the Fugitive Slave Acts did to free black men and women in the 1850s. One can easily construe language in sections 1021 and 1022 of the NDAA to grant the federal government power to detain American citizens indefinitely. A fair reading of the detention provisions reveal them as vague, overbroad and open to interpretation. That leaves Americans to trust in the good character and moral clarity of Barak Obama, Rick Santorum or whoever happens to reside at the White House to protect them from abuse an of this power.

No thanks!

James Madison insisted states have not only a right, but a duty to interpose for “arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.” If the prospect of indefinite detention without due process doesn’t qualify as what Madison called “a case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact (the Constitution), what exactly does?

The rightful remedy? Nullify any possibility of federal detention of American citizens without due process. There’s even model legislation that you can use in your state, county, city or town. The Liberty Preservation Act does just that – (click here to view it and share it with your local and state representatives.)

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States legislators and local officials today need to follow in the footsteps of those valiant men and women who refused to comply with the federal government’s Fugitive Slave Act and stood up for the fundamental right of due process. State legislatures and local governments should make it clear that they will not allow federal agents to arrest and detain Americans at the discretion of the president or some federal bureaucrat. If NDAA supporters speak the truth and no such power exists, nullification efforts will merely serve as a safety net. But if federal officials do find latitude in the NDAA to indefinitely detain American citizens, the states will serve as a last line of defense.

If we refuse to accept that the states have the right and duty to interpose, than we tacitly accept that federal government has the authority to do whatever it wants with absolutely no check on its actions – Constitution be damned.

That prospect seems a whole lot scarier than whatever terrorist threat they claim to protect us from.

Mike Maharrey

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