States’ Rights and Antislavery Activism

Michael E. Woods, associate professor of history at Marshall University, has joined our team of Muster correspondents. He is the author of two books and several articles about politics in the antebellum period. Here he offers his first Field Dispatch. Let us know what you think in the comments!

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The “states’ rights!” refrain is echoing in American politics, often coming from unexpected directions. California has crafted an independent climate change policy. Dozens of states have challenged the Presidential Advisory Commission on Election Integrity. Prospective “sanctuary states” from New York to Nevada might limit their collaboration with federal immigration authorities. There is ample evidence supporting columnist Charles Lane’s remark that, in 2017, “liberals are learning to love states’ rights.”[1]

Is this trend significant? Definitely, although its full influence will not be known until confrontations between state and federal authorities unfold. Is it surprising, ironic, or unprecedented? No. Americans across the political spectrum have leveraged state power against federal might. States’ rights appeals, as battle cries or as blueprints for political action, are neither distinctively Southern nor intrinsically reactionary. Secessionists in the nineteenth century and segregationists in the twentieth claimed ownership states’ rights in the name of white supremacy. But other historical cases are starkly different – and quite pertinent. Take the foundational texts of many states’ rights doctrines, Thomas Jefferson and James Madison’s Kentucky (1799) and Virginia (1798) Resolutions. They assert that a state government may interpose to protect the civil rights of its citizens against unconstitutional federal usurpation.[2] They were also written in response to federal efforts to suppress journalistic dissent and expedite the deportation of foreigners. States’ rights have been wielded both to attack and to defend the values of liberty and equality that the United States, at its best, has championed.

Among the most important, but commonly forgotten, advocates of states’ rights were the antislavery activists who launched the Republican Party in the 1850s. As I explored more thoroughly in a recent Journal of the Civil War Era article, early Republicans used states’ rights to win voter support and to challenge proslavery federal policies.[3] For Northerners who feared that federal officeholders served an insidious southern “slave power,” states’ rights offered a desperately needed basis for resistance.

Slavery’s foes deployed states’ rights with skill, most notably against the Fugitive Slave Act. Passed as part of the Compromise of 1850, the Act was one of the nineteenth century’s boldest expansions of federal power. Designed to put teeth into the Constitution’s ambiguous provision that fugitives “be delivered up” to their masters,[4] the Fugitive Slave Act made the recovery of runaway slaves a federal priority. Federal officers were bound to help capture accused fugitives. Bystanders could be compelled to assist. Failing to cooperate, or aiding a fugitive, could be punished with fines or imprisonment. And when an alleged fugitive was hauled before a federal commissioner tasked with executing the Act, he or she had no right to legal counsel, a jury trial, or an opportunity to testify. Commissioners who ruled in favor of masters received a ten dollar fee; those who released accused fugitives earned only five dollars.[5]

Northern critics denounced the Act for violating civil liberties and states’ rights. They followed Jefferson and Madison’s example by linking individual freedom to the right, and duty, of a state to protect them. Antislavery Northerners, including many future Republicans, regularly joined Salmon P. Chase in denying that the federal government had authority to recover fugitive slaves. They assigned this power to the states alone.[6] Gideon Welles, who would serve with Chase in Abraham Lincoln’s cabinet, blasted the Fugitive Slave Act as an “invasion of the states” every bit as malicious as the Alien and Sedition Acts.[7]

The oratorical onslaught against the Fugitive Slave Act persisted long after 1850. Individual cases, including the recapture of Anthony Burns in 1854, coupled with efforts to strengthen the law, kept the issue alive. When Southern senators backed an 1855 bill to exempt officers from state prosecution for acts committed while enforcing federal laws, Salmon Chase led the counterattack. He knew the bill’s intent was to embolden federal slave catchers, and he condemned it as “a bill for the overthrow of State rights” which would “establish a great central, consolidated, Federal Government,” and as a step “towards despotism.” He wondered how southerners who “profess State-Rights doctrines” could stomach it.[8]

These rhetorical appeals helped Republicans deflect criticism. Their proslavery foes, casting themselves as defenders of liberty, denounced the young Republican Party as a cabal of budding tyrants. South Carolina’s James Chesnut accused Republicans of plotting to “prostrate the States, consolidate the Government,” and impose “a mighty and odious despotism.”[9] By pledging loyalty to states’ rights, Republicans claimed space in the mainstream of American political history and theory. Henry Wilson affirmed that his party and Jefferson’s shared more than just a name: “the Republican party of 1856, like the Republican party of 1800, is the party of State rights.”[10]

In the long run, these appeals could win votes for Republican candidates. But fugitive slaves, free blacks, and their white allies lived in the short run, under the threat of federal prosecution. To offer pragmatic resistance to the Fugitive Slave Act at the grassroots level, Republicans again relied on states’ rights.

Many Republicans turned to state legislation to defang the hated Act. Republicans spearheaded the movement for “personal liberty laws” in the mid-1850s. In the first half of the nineteenth century, some Northern states had already passed similar legislation, but after the Fugitive Slave Act and several dramatic fugitive cases, Republicans demanded more vigorous action.[11] These state measures worked on two levels. Most offered legal protections to accused runaways. Michigan’s law, for example, guaranteed defendants’ recourse to the writ of habeas corpus and the right to a jury trial. The law also required prosecuting attorneys to defend accused fugitives; required testimony from two witnesses to prove fugitive status; and made it a criminal offense to arrest free persons with intent to enslave them.[12] Other laws, like Massachusetts’s exceptionally powerful 1855 law, also sought to divorce the state from the enforcement of the Fugitive Slave Act. State officers could not issue arrest warrants under that Act, and Massachusetts attorneys could not represent self-proclaimed masters in court.[13] As the Republican Party’s strength waxed in the 1850s, nine Northern states passed new or reinvigorated personal liberty laws. Many Republicans believed that the Fugitive Slave Act was not merely odious, but unconstitutional. State legislatures could impede its enforcement but it was state courts which attempted to nullify the law altogether.

Nowhere were the links between states’ rights and Republicans’ antislavery politics clearer than in Wisconsin. Wisconsin’s showdown with the “slave power” began when antislavery activists helped fugitive Joshua Glover reach freedom in 1854.[14] Among them was Sherman Booth, an antislavery newspaper editor and future Republican, who was convicted in a federal court for violating the Fugitive Slave Act. In what one scholar deemed “the most extreme declaration of state judicial power north or south of the Mason-Dixon Line,” Wisconsin’s state supreme court overturned Booth’s conviction, holding that the Fugitive Slave Act was unconstitutional because states reserved the power to handle fugitive cases.[15] In 1859, the U.S. Supreme Court responded by defending the Act’s constitutionality and asserting its supremacy over state courts. Undaunted, Wisconsin’s state legislature wove the Virginia and Kentucky Resolutions into a defiant resolution of protest, insisting that because the states had created the federal government, they alone were competent to define its powers. Republicans cast all sixty of the votes for this states’ rights manifesto.[16]

The case reverberated through Wisconsin politics. When Republican Orasmus Cole ran for a seat on the famed state supreme court, he adopted “State Rights, State Sovereignty, and the personal liberty of all our citizens” as his slogan. This melding of civil liberties, state rights, and antislavery fervor forged a winning campaign. During the next contest for a seat on the court, Republicans boldly nominated Byron Paine, who had represented Sherman Booth. With supporters urging voters to endorse “STATE RIGHTS AND BYRON PAINE,” Paine triumphed.[17]

Given popular memory of the Civil War era, it seems ironic that antislavery Northerners were, as Paul Finkelman has argued, “the most important proponents of states’ rights in the antebellum period.”[18] But their reliance on states’ rights was predictable. With slavery’s supporters dominating all three branches of the federal government, and with proslavery politicians insisting that Republicans aspired to authoritarianism, antebellum Republicans readily used states’ rights to rally northern support, deflect southern criticism, and resist proslavery policies. They would have embraced the eulogy later given to Salmon Chase, whom one admirer described as a “States Rights man always in the interest of liberty.”[19]

 

[1] Charles Lane, “Liberals Are Learning to Love States’ Rights,” Washington Post, March 15, 2017, accessed September 12, 2017, https://www.washingtonpost.com/opinions/liberals-are-learning-to-love-states-rights/2017/03/15/c40044e6-098c-11e7-93dc-00f9bdd74ed1_story.html?utm_term=.04ee7dd72367.

[2] “Kentucky Resolution – Alien and Sedition Acts,” The Avalon Project, accessed September 12, 2017, http://avalon.law.yale.edu/18th_century/kenres.asp; “Virginia Resolution – Alien and Sedition Acts,” The Avalon Project, accessed September 12, 2017, http://avalon.law.yale.edu/18th_century/virres.asp.

[3] Michael E. Woods, “‘Tell Us Something about State Rights’: Northern Republicans, States’ Rights, and the Coming of the Civil War,” Journal of the Civil War Era 7, no. 2 (June 2017): 242-268.

[4] U.S. Const. art. IV, sec. 2.

[5] Don E. Fehrenbacher, The Slaveholding Republic: A History of the United States Government’s Relations to Slavery, completed and edited by Ward M. McAffee (New York: Oxford University Press, 2001), 231-232; Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North, 1780-1861 (Baltimore: The Johns Hopkins University Press, 1974), 145-146; Kristen Epps, “Habeas Corpus, the Fugitive Slave Law, and Executive Authority,” Muster Blog, accessed September 12, 2017, https://journalofthecivilwarera.org/2017/02/habeas-corpus-fugitive-slave-law-executive-authority/. For the text of the Act, see “Fugitive Slave Act 1850,” The Avalon Project, accessed September 7, 2017, http://avalon.law.yale.edu/19th_century/fugitive.asp.

[6] Cong. Globe, 31st Cong., 1st Sess., appendix, 1587 (August 19, 1850).

[7] [Gideon Welles] to My Dear Sir, October 15, 1851, Gideon Welles Papers, Connecticut Historical Society, Hartford, Connecticut.

[8] Cong. Globe, 33rd Cong., 2d Sess., appendix, 212 (February 23, 1855).

[9] Cong. Globe, 36th Cong., 1st Sess. 1617 (April 9, 1860).

[10] Cong. Globe, 34th Cong., 3d Sess., appendix, 65 (December 19, 1856).

[11] Morris, Free Men All, chapters 3, 7.

[12] William McDaid, “Kinsley S. Bingham and the Republican Ideology of Antislavery, 1847-1855,” Michigan Historical Review 16, no. 2 (Fall 1990): 71.

[13] Morris, Free Men All, 168-173.

[14] H. Robert Baker, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (Athens: Ohio University Press, 2006).

[15] Jeffrey Schmitt, “Rethinking Ableman v. Booth and States’ Rights in Wisconsin,” Virginia Law Review 93, no. 5 (September 2007): 1315-1316.

[16] Michael J. McManus, “‘Freedom and Liberty First, and the Union Afterwards’: State Rights and the Wisconsin Republican Party, 1854-1861,” in Union & Emancipation: Essays on Politics and Race in the Civil War Era, eds. David W. Blight and Brooks D. Simpson (Kent, OH: Kent State University Press, 1997), 50-51.

[17] McManus, 42-43, 51.

[18] Paul Finkelman, “States’ Rights, Southern Hypocrisy, and the Crisis of the Union,” in Union & States’ Rights: A History and Interpretation of Interposition, Nullification, and Secession 150 Years After Sumter, ed. Neil H. Cogan (Akron, OH: University of Akron Press, 2014), 68.

[19] “Salmon P. Chase,” American Law Record 15 (1886-87): 307.