Liberty Matters

States’ Rights AND Anti-slavery? Another way to Look at the Original Constitution


Present day discussions of the framing of the Constitution have a tendency to interpret the document through the later events of the Civil War, Jim Crow, and modern conflicts over civil rights. That view has led to an unfortunate and largely unhistorical view that the advocates of national and more centralized government were always the principal sources of opposition to slavery. The reality is more complicated.
While the anti-slavery sentiments of such nationalists as Alexander Hamilton or Gouverneur Morris are important and well established, we shouldn’t lose sight of the fact that some of the strongest voices against the peculiar institution were themselves ardent proponents of decentralized and more polycentric forms of self-governance. 
William Paterson of New Jersey, who presented the main alternative to the Virginia Plan as articulated and defended by James Madison and Edmund Randolph, was actually earlier in articulating the position that Morris would subsequently develop with greater verve and passion:
Patterson asked:
Has a man in Virga. a number of votes in proportion to the number of his slaves? And if … not represented in the States to which they belong, why should they be represented in the Genl. Govt. What is the true principle of Representation? It is an expedient by which an assembly of certain individuals chosen by the people is substituted in place of the inconvenient meeting of the people themselves. If such a meeting of the people was actually to take place, would the slaves vote? They would not. Why then shd. they be represented? He was also agst. such an indirect encouragement of the slave trade; observing that Congs. in their act relating to the change of the 8 art: of Confedn. had been ashamed to use the term ‘slaves’ and had substituted a description.
And it was none other than Luther Martin of Maryland, a dissenter from the Constitution, who insisted that both the fugitive slave clause and the 3/5ths compromise were “inconsistent with the principles of the Revolution and dishonorable to the American character.” These voices should not be forgotten when considering Madison’s characterization of the document as “partly federal” and “partly national.”
To properly assess the various provisions that produced the checks and balances among state and national authorities in the Constitution, the subject of the Fugitive Slave Clause of Article 4, Section 2 looms large as perhaps the single biggest conundrum. On its face, the provision appears to enlist the power of the national government in support of slavery by requiring the return of escaped slaves to their masters. Some later abolitionists, such as William Lloyd Garrison, would make this exhibit number one in their indictment of the document as a compact with the devil.  But is that the whole story?
Fredrick Douglass’ counter to the Garrisonian argument has already been nicely developed, but there is a further point that is often not remembered. While Article 4, Section 2 called on the states to return those bound to labor in another state, “to be delivered up on claim of the Party to whom such Service or Labour be due,” it did not specify how such claims were to be proven and processed, and this omission, if indeed it was one, became the basis for what were called Personal Liberty Laws.
It was right here, in the “partly federal” character of the reservation to the original jurisdiction of the states for the provision and enforcement of rights, that free states would pose a continuing challenge to the fashioning and enforcement of all subsequent national legislation to compel the re-enslavement of escaped bondsmen. As historian H. Robert Baker has pointed out,  
“From 1780 through about 1820, anti-kidnapping laws and state habeas corpus procedure served both to protect free blacks in their liberty and regulate fugitive slave reclamation. From 1820 through 1842, several free states passed more robust personal liberty laws that regulated the process of fugitive slave removal.” See also, here
Among the most famous examples of a state’s rights action against the Fugitive Slave Act of 1850, is that of the Wisconsin Supreme Court in what came to be called the “Booth Cases” which extended from 1854 to 1858. 
Sherman M. Booth was the editor of the Milwaukee Free Democrat, an abolitionist paper. In 1852 Federal Marshals were commissioned to retrieve a Joshua Glover who was suspected of being an escapee from bondage to a Bennami Garland of Missouri. Booth not only assisted Glover to escape detention while awaiting extradition, but also helped him to escape into Canada. This resulted in Booth’s arrest.
Booth’s lawyers then applied for a writ of habeas corpus first to a Milwaukee county court and then to Wisconsin Supreme Court Justice, Abram D. Smith. Smith would find the Fugitive Slave Law unconstitutional, agreeing with Booth’s attorneys that the Constitution did not authorize Congress to abrogate trial by jury and consign judicial powers to court commissioners. He then ordered Booth released. 
The essential arguments were nicely summarized in the extended argument of Booth’s lawyers published as The Unconstitutionality of the Fugitive Slave Act in 1855.
From the Wisconsin court, through various permutations, the issue eventually made its way to the US Supreme court where Justice Roger B. Taney would reverse the Wisconsin decision, finding that state justices and courts had no jurisdiction to interfere in a federal case by habeas corpus. But the essential point is that the original clause regarding fugitives still had to be interpreted. As Booth’s lawyer’s noted, It was not simply a matter of making a claim and having it enforced:
Here is a fact to be ascertained, before the fugitive can be legally delivered up, viz; that his service or labor is really due to the party who claims him. How is the fact to be ascertained? A claim is set up to the service of a person. He who makes the claim is denominated by the Constitution as a party. The claimant is one party, the person who resists the claim is another party. If he really owes the service according to the laws of the State from which he is alleged to have escaped and has in fact escaped, he must be delivered up. If the claim is unfounded, he cannot be delivered up. The Constitution itself has made up the issue, and arranged the parties to it. Can any proposition be plainer, than that here is suspended a legal right upon an issue of fact, which can only be determined by the constitutional judicial tribunals of the country?