The historian Kate Masur had a piece a bit ago about what we can learn from state-level battles over fugitive slave laws for our current abdication of the federal government to protect liberty.
The Dobbs decision, which gives states complete control over abortion laws, has unleashed conflicts that resemble the battles that arose when enslaved people fled slave states for free states, and enslavers, in turn, mobilized state and federal power to get them back.
This history doesn’t provide a blueprint for action in our own time, but it does remind us of the corrosive impact of interstate conflict and of the importance of federal protections for freedom and individual rights.
In the late 18th and early 19th century, northern states abolished slavery, and a long border emerged within the United States, between free states and slave states. It also became clear that some Americans were strongly committed to enslaving people while others found the practice morally abhorrent. Enslaved people themselves brought the clashing views into relief as they regularly escaped bondage and fled to states where slavery was outlawed.In 1793, Congress passed a law intended to enforce the Constitution’s fugitive slave clause, which recognized that enslavers had some power to claim enslaved people who managed to get to free states. But that law left open many questions, including how enslavers’ claims would be adjudicated and the extent to which free states could establish their own procedures for such cases.
Over time, as the abolition movement grew, northerners insisted that enslavers had no business sending agents to enforce slavery beyond the borders of their own states, and free states enacted a variety of policies to constrain enslavers’ power. Known as “personal liberty laws,” these included state-level provisions to protect free Black people from kidnapping, strict standards of evidence for evaluating enslavers’ claims and jury trials for adjudicating those claims, rather than cursory proceedings before a single local official.
Infuriated enslavers demanded better treatment from White Americans in the free states. The governments of slave states sometimes sent delegations to free states to demand repeal of personal liberty laws. And free states vacillated in their policies, often changing course when a new political party took power in the legislature. The relative safety of Black people living in the North was in constant flux as a result.Many looked to the federal government to resolve the conflicts and uncertainty. The U.S. Supreme Court entered the debate in the 1842 case of Prigg v. Pennsylvania. There, the court declared that enforcement of the Constitution’s fugitive slave clause was a matter of exclusive federal jurisdiction, invaliding many personal liberty laws and opening the door for a much more stringent federal fugitive slave law.
But Prigg also made space for free state local officials to refuse to cooperate with enslavers, and this they certainly did. In the 1840s, many free states passed new personal liberty laws, some of which declared that state and local officials were not permitted to cooperate in the renditions of fugitive enslaved people.
There’s more, I didn’t want to quote the whole thing.
One thing I think is really important here is that the arguments we’ve made about what would happen with Roe’s overturning have moved from abstract to reality. As we saw with the 10 year old girl in Ohio, now these ghouls have to defend the most heinous actions imaginable. Like with fugitive slaves, the human tragedy of all this is too great to imagine, but it also may change the debate with the vast center of America that really barely pays attention to anything, as it did in Ireland when one woman’s death finally pushed that nation toward legalization.