When the South Wasn’t a Fan of States’ Rights

Roundup
tags: States Rights, Fugitive Slave Law



Eric Foner is Dewitt Clinton Professor of History at Columbia University and the author of The Fiery Trial: Abraham Lincoln and American Slavery. His most recent book, Gateway to Freedom: The Hidden History of the Underground Railroad (W.W. Norton and Co.), was published this week.

Whenever I lecture to non-academic audiences about the Civil War era, someone is bound to insist that the South fought for states’ rights rather than the long-term survival of slavery. In an extreme version of this view, Abraham Lincoln was not the Great Emancipator but a tyrant, the creator of the leviathan national state that essentially enslaved white Americans. This reading of the conflict is why a remarkable number of libertarians, self-proclaimed defenders of individual freedom, sympathize with the Old South, and why some even make excuses for slavery.

But this history omits one important part of antebellum history: When it came to enforcing and maintaining the peculiar institution against an increasingly anti-slavery North, the Old South was all too happy to forget its fear of federal power—a little-remembered fact in our modern retellings of the conflict.

The slavery exception to otherwise robust support for states’ rights was a recurring feature of antebellum Southern politics. Southerners wrote into the Constitution a clause requiring the return of slaves who escaped from one state to another, and in 1793, only four years after George Washington assumed the presidency, they persuaded Congress to enact a law putting that clause into effect. Ironically, when it came to runaway slaves, the white South, usually vocal in defense of local rights, favored robust national action, while some northern states engaged in the nullification of federal law, enacting “personal liberty” laws that barred local officials from cooperating in the capture and return of fugitives. 

The Old South also invoked federal power in other ways to strengthen slavery—for example, when it came to employing federal troops in the 1830s to remove Native Americans from southern lands ripe for cotton cultivation. The most striking example was the South’s embrace of national power to capture and return fugitive slaves, especially as implemented in the Fugitive Slave Law of 1850. This law was the most robust expansion of federal authority over the states, and over individual Americans, of the antebellum era.

In the 1840s, as increasing numbers of slaves pursued freedom by running away to the North and a network of local groups, collectively known as the underground railroad, came into existence to assist them, southerners demanded national action. As part of the Compromise of 1850, which abolished the slave trade in the nation’s capital and allowed territories recently acquired from Mexico to decide whether or not to allow slavery, Congress enacted the new, draconian fugitive slave law. The measure created a new category of federal officeholder, U.S. commissioners, authorized to hear cases of accused fugitives and issue certificates of removal, documents that could not be challenged in any court. The fugitive could neither claim a writ of habeas corpus nor testify at the hearing, whose sole purpose was to establish his or her identity. Federal marshals could deputize individuals to execute a commissioner’s orders and, if necessary, call on the assistance of local officials and even bystanders....





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