What the Fugitive Slave Act Teaches Us About How States Can Resist Oppressive Federal Power

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tags: Harriet Tubman, Trump, Fugitive Slave Act



Eric Foner, a member of The Nation’s editorial board and the DeWitt Clinton Professor of History at Columbia University, is the author, most recently, of Battles for Freedom: The Use and Abuse of American History, to be published by eBookNation and IB Tauris in April, and Gateway to Freedom: The Hidden History of the Underground Railroad.

... Progressives have long been accustomed to look to the federal government to protect individual liberties, while conservatives invoke states’ rights to oppose everything from voting-rights enforcement to environmental regulations. Slavery and, later, Jim Crow were created by state law, and it required unprecedented exercises of federal power to abolish them and establish a legal framework of equal rights regardless of race. But there is nothing inherently progressive about federal power, and in some circumstances local self-government can become a bastion of resistance to reactionary national actions (see, for example, Sasha Abramsky’s article here). In the early 20th century, to borrow a phrase from Supreme Court Justice Louis Brandeis, states were regarded as the “laboratories of democracy,” pioneering political reforms and social-welfare legislation later adopted on the federal level.

When it came to fugitive slaves, the South demanded vigorous national action. The Fugitive Slave Act was probably the most intrusive intervention by Washington into local affairs of the entire pre–Civil War period. In response, Northern opponents turned to states’ rights. Wisconsin’s legislature, for example, “nullified” the law, and the State Supreme Court declared it unconstitutional—a ruling subsequently overturned by the US Supreme Court.

The actions today of the attorneys general of California, New York, and other states—as well as hundreds of “sanctuary” cities and college campuses—in refusing to cooperate with the discriminatory policies of the federal government have their antecedents in this resistance to the Fugitive Slave Act. Faced with the need to combat the most retrograde national administration of our lifetimes, progressives need to rediscover the local power embedded in our Constitution.

Today, Harriet Tubman, the escaped slave who violated federal law by leading dozens of fugitives to freedom, is a national hero; her image will soon appear on the $20 bill. Meanwhile, who now remembers those who pursued the fugitive slaves, or the officials who promulgated and enforced the 1850 law? The name of Millard Fillmore, who signed that infamous statute and later ran for president as the candidate of the anti-immigrant American Party, evokes laughter, if it is recalled at all. History’s most painful rebuke to Donald Trump is that he will very likely be forgotten—or, even worse, remembered as the Millard Fillmore of the 21st century.




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