This weekend’s Ku Klux Klan rally outside the South Carolina capitol building highlights the poignancy and divisiveness inherent in flying the Confederate battle flag, a symbol often associated with racial intolerance. Predictably, Confederate apologists have trotted out the “states’ rights” explanation for the Civil War as the race-neutral reason for the South’s rebellion—thus the flag represents something other than racism. Indeed, a recent Pew Research Center poll found that, 150 years after the Civil War, 48 percent of Americans (a plurality) still assert it was mainly about states’ rights.
This justification is inaccurate. When it came to slavery, the Union, not the Confederacy, was the true guardian of state autonomy in the antebellum era. After all, how is it that concerns over the Fugitive Slave Act of 1850, a federal law enforced by federal agents (or compelled state agents), could possibly be a states’ rights issue? It is long past time to put the contrary myth to rest, especially when the true doctrine of states’ rights is an important, laudable ideal enshrined in the federal Constitution.
The South Pushed Federal Curbs on Free States
The South’s real concern in the antebellum period was that states and territories in the North and West were passing state laws aimed at undermining the federal fugitive slave laws, and that new states would choose to join the Union as free states. Those jurisdictions wanted to retain the right to determine whether people could be slaves within their state boundaries—as opposed to the federal government making such determinations.
The South’s distain for states’ rights can be seen in the Constitution’s Fugitive Slave Clause (the less famous cousin to the Three-Fifths Clause, which boosted federal representation from slave states), the Fugitive Slave Act of 1793, the Missouri Compromise of 1820, and the 1850 Compromise. All were federal actions aimed at controlling northern states. The South did not return the North’s favor: before the Civil War, no attempts to ban slavery even made it to a vote on the floor of Congress.
At the Constitutional Convention, the southern states demanded that the Constitution include a clause stating that: “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”
That clause was a massive imposition on states’ rights—and two of the most influential founding fathers, James Wilson and Roger Sherman, objected on those grounds. As recorded in James Madison’s notes, the clause was initially stricken after Wilson complained “[t]his would oblige the Executive of the State to [enforce the Clause] at the public expense.” But backroom lobbying by the South Carolina delegates resulted in the clause being reinserted the next day. The provision was eventually incorporated into Article IV, where it remained until the Thirteenth Amendment obviated it.
It is important to remember that, before the Civil War, even the Bill of Rights could not be applied against the states: states could violate individual liberties without any federal oversight. Yet all states, by joining the Union, would now be part of the South’s vast slave-catching net. At this point, it was safe to say that the South had absolutely no interest in preserving state autonomy, at least inasmuch as it cared to use federal law to protect its interest in billions of dollars of human “property.”
Go Ahead, Break Into Homes at Night
In the years after independence, Congress passed “[a]n Act respecting fugitives from justice, and persons escaping from the service of their masters.” This Act, also known as the Fugitive Slave Act of 1793, compelled states to carry out the return of fugitive slaves, as the Constitution lacked a mechanism to enforce return of runaway “property.”
The act created criminal liability for anyone who attempted to interfere with the reclamation of slaves—a defendant could not “excuse himself against the penalty, by pleading ignorance of the law, or an honest belief that the person was not a fugitive from service or labor”—and exempted masters’ attempts at reclaiming their slaves from interference by state or non-state actors.
The act also allowed nighttime raids mirroring today’s police militarization: “[A]n absconding slave may be arrested on Sunday; in the night time; in the house of another, if no breach of the peace is committed.” Despite that last caveat, it is difficult to figure how nighttime entry by armed slave-catchers into a home could be construed as “peaceful.”
As to the states’ rights issue, the act noted that “[The Fugitive Slave Clause’s] true design was to guard against the doctrines and principles prevailing in the non-slaveholding states, by preventing them from intermeddling with or obstructing or abolishing the rights of the slave owners… [It] manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave, which no state law or regulation can in any way qualify, regulate, control, or restrain.” Translation: the South made slavery a federal issue for the avowed purpose of imposing on the rights of the northern states to enact the laws that they saw fit within their borders.
Apparently, the Tenth Amendment reserved every power to the states except those delegated to the federal government—and those that the South wished to use to maintain its racial caste system.
Forcing States Into Slavery
Clearly, the South had little regard for the rights of other states. That disregard manifested next in the Missouri Compromise of 1820. Southern states recognized that, as America expanded westward into the Kentucky and Nebraska Territories, it would be impossible for them to maintain the pro-slavery majorities they held in Congress; eventually, all slaves could be freed by federal law. In an attempt to stop emancipation, the South forced House Speaker Henry Clay into a compromise position on federal legislation. This trade made Missouri accept slavery and left open the possibility of slavery expanding west below the 36’30 parallel.
The South’s supposed support for states’ rights did not extend to allowing Missouri residents to follow their own path on slavery. Southern politicians worried that they would lose the popular battle over slavery that federal law had decided in their favor and thus, eventually, lose control of the Senate.
In the 1840s and 1850s, the Supreme Court began addressing these impositions on states’ rights. In Prigg v. Pennsylvania (1842), the court struck down a Pennsylvania law preventing the transportation of any “negro or mullato” for the purposes of returning the person to slavery—because federal law superseded state law. But, the court also held, importantly, that northern states did not need to use their own resources to enforce the Fugitive Slave Act of 1793. The South was livid. Its prized scheme of using federal primacy to bend northern states to its will was cracking.
The Wilmont Proviso, introduced in 1846 and killed in 1849, endeavored to use federal law—for once—to aid abolitionists. It attempted to make any territory admitted to the Union after the Mexican War slave-free. The effort passed in the House (because the North was more populous) before failing in the Senate.
Subjugating States to Federal Command
In the aftermath of the Wilmont Proviso, the South rose again. The Compromise of 1850, which admitted California as a free state and New Mexico and Utah as slave territories, included passage of the Fugitive Slave Act of 1850. This new law, essentially an accentuated version of its 1793 predecessor, allowed for the mass enslavement of freed blacks in the North.
The 1850 Act criminalized aiding freed slaves (including feeding them), made state officials criminally liable for failing to arrest runaways, lowered the standard of proof for someone to be adjudged a slave to a master’s affidavit, prohibited using jury trials in northern states to determine the facts of a black person’s condition of servitude, and disqualified the alleged slave from testifying or calling witnesses. It also included the dreaded “posse comitatus,” or federal militia, provision that allowed federal agents to impress into service citizens of the state in which they found themselves. Posse comitatus also allowed soldiers to be impressed into slave-catching gangs, creating the precedent for the use of military personnel in civilian law enforcement—something that, under Reconstruction in the 1860s and 1870s, Southerners found to violate their states’ rights.
The North hated this law. In short, the new Fugitive Slave Act was a federal command to states on how to run their judicial systems and law enforcement, with the impressment of states’ citizens into federal slave-catching service.
Black children in the North were especially vulnerable to kidnapping by what was effectively a reverse Underground Railroad. Solomon Northup, whose life is the subject of the Oscar-winning, based-on-a-true-story movie “12 Years a Slave,” was living in New York before he was lured to Washington by a job offer. Once there, he was kidnapped, brought to the South, and sold as a slave. With the immense powers given to slave-catchers under the renewed Fugitive Slave Act, stories such as Northup’s were not rare.
The North Rises to Assert States’ Rights
Needless to say, the North nearly rose in rebellion itself when Daniel Webster and the Whigs attempted to enforce the new law. Boston experienced major riots after the capture and judicial processing of escaped slaves and those who assisted them. In 1850, Vermont passed a law that commanded its officials to assist fugitive slaves—a direct interposition against the federal law—leading President Millard Fillmore to threaten to use the federal army to enforce the Fugitive Slave Act.
In 1854, the Wisconsin Supreme Court held the Fugitive Slave Act unconstitutional—only to be overruled by the U.S. Supreme Court. As Adam Freedman wrote recently in City Journal, in the wake of these violations of state sovereignty, Abraham Lincoln traveled the nation predicting the eventual “nationalization of slavery” and pushed for the Republican Party to stand up against an overbearing federal government.
Moreover, when the southern states actually seceded, they made it clear that they were furious with the northern states for exercising their states’ rights at the expense of the South’s interests in owning people. According to a recent Washington Post article by University of Vermont professor James W. Loewen, “[W]hen each state left the Union, its leaders made clear that they were seceding because they were for slavery and against states’ rights. In its ‘Declaration of the Causes Which Impel the State of Texas to Secede From the Federal Union,’ for example, the secession convention of Texas listed the states that had offended the delegates . . . . Governments there had exercised states’ rights by passing laws that interfered with the federal government’s attempts to enforce the Fugitive Slave Act.”
States’ rights are a critical component of the U.S.—not Confederate—system, and as long as the term still holds the false association with the rights of slaveholders, the argument against overreaching federal powers will have difficulty gaining the appreciation it deserves. Regardless of the merits of flying Confederate flags, one feeling people should never have when they see the Stars and Bars is a respect for federalism.
The rallying cry of “states’ rights” was at best disingenuous and at worst evil. It’s time to clear the air on this misconception.