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The Truth About States’ Rights

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The Truth About States’ Rights

It was federal power, championed by the South, that protected slavery. Autumn 2014
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NATIONAL PORTRAIT GALLERY, SMITHSONIAN INSTITUTION/ART RESOURCE, NY
In Abraham Lincoln’s “House Divided” speech, the future president attacked the Supreme Court for interfering with states’ rights.

On March 24, 1859, a leading statesman who would soon find himself fighting in the Civil War gave a speech titled “State Rights.” In it, he warned of federal “usurpation” of state sovereignty on the issue of slavery, and he urged states to nullify national laws that threatened their autonomy. Urging his listeners to stand firm against an overbearing Washington, he declared: “Here is the battlefield, every man to his gun!”

The speaker was not Robert E. Lee, Jefferson Davis, or some other Confederate statesman, but Carl Schurz, a leading abolitionist of the nineteenth century. Schurz would go on to serve as a Union officer during the Civil War, after which he enjoyed a distinguished career as a journalist, U.S. senator, and secretary of the interior. Manhattan’s Upper East Side is home to a park named after him.

The fact that Schurz was passionately devoted to both abolition and states’ rights flies in the face of most everything we’re taught about the causes of the Civil War. According to the standard version of history, states’ rights was a doctrine invented by Southern politicians to perpetuate slavery. One high school textbook, for example, describes the term “states’ rights” as an antebellum euphemism for “the right of the states to maintain slavery and the right of individuals to hold property in slaves.” In a 2011 interview on NPR, Adam Goodhart, author of 1861: The Civil War Awakening, asserted that “the only significant state right that people were arguing about in 1860 was the right to own what was known as slave property.” A 2013 New York Times op-ed declared that “since the nation’s founding, ‘states’ rights’ has been a rallying cry for those who wished to systematically disenfranchise and exploit large segments of their population.” A plaque at the Smithsonian’s National Portrait Gallery describes states’ rights as a doctrine that “protected the institution of slavery.”

This conventional history provides a handy rhetorical weapon for liberal commentators, who accuse states’ rights conservatives of embracing a doctrine historically identified with “pro-slavery ideologies and . . . the disenfranchisement of African-Americans,” as the Nation puts it. Now that the 2016 presidential campaign is getting under way—with some GOP hopefuls advocating a return to states’ rights—expect many in the media to warn us that the Tea Party is forgetting the lessons of history.

But what if the lessons of history are wrong, and the doctrine of states’ rights was actually an antislavery ideology?

Consider the logic. If states’ rights was a doctrine that “protected” slavery—as the Smithsonian asserts—then it’s fair to ask: Protected it against what? Presumably, against a threatened federal law that would impose abolition upon unwilling Southern states. But the federal government never came close to enacting such a law before the Civil War; the Emancipation Proclamation would not come until the middle of the war (1863), and even then, it applied only to the states in rebellion. Before that, few federal proposals would have interfered with the autonomy of existing slave states, and those proposals went nowhere. Constitutional amendments to abolish slavery had been introduced in the House in 1818 and 1839; neither made it to the floor for a vote.

During the first half of the nineteenth century, pro-slavery politicians were much more likely to rely on federal power than on states’ rights. The United States Constitution implicitly permitted slavery, while the “three-fifths clause” boosted the congressional delegations and Electoral College votes of the slave states. Federal law guaranteed the return of fugitive slaves to their masters. In the District of Columbia—over which the federal Congress had total authority—slavery remained legal until 1850, when it was finally abolished, but only in return for an expansion of slavery elsewhere. Congress did prohibit international slave trade in 1808; but by that time, every Southern state except South Carolina had already passed laws banning or restricting the slave trade.

In 1882, Henry Adams—Harvard historian, descendant of Presidents John Adams and John Quincy Adams, and Boston Brahmin if ever there was one—defended states’ rights as “a sound and true doctrine . . . as dear to New England as to Virginia.” Between slavery and states’ rights, there was, he wrote, “no necessary connection.” To the contrary, “whenever a question arose of extending or protecting slavery, the slaveholders became friends of centralized power, and used that dangerous weapon with a kind of frenzy.” In the 1830s, for example, pro-slavery politicians called on the federal government to use its postal powers to keep abolitionist pamphlets out of the mail. In 1835, President Andrew Jackson obliged by proposing to Congress legislation to prohibit the postal service from delivering “incendiary” literature that could provoke slave insurrection.

The postal-suppression legislation was referred to a committee chaired by John Calhoun, the most renowned states’ rights advocate of the antebellum South. Calhoun objected to the proposal on the basis of state sovereignty: he could not abide federal meddling in a state-level debate. Calhoun watered down the administration’s legislation, giving postmasters authority only to enforce state preferences: if South Carolina wanted to block abolitionist tracts, the post office would comply, but other states would be free to allow such materials. Calhoun’s version was not exactly an enlightened piece of legislation, but it was considerably less oppressive than Jackson’s original proposal. The bill, in any event, was defeated.

The major states’ rights issue leading up to the war concerned the right of free states and territories to exclude slavery within their borders. The Constitution’s Fugitive Slave Clause provides that a slave who escapes into another state “shall be delivered up on Claim of [the owner].” Though the clause gave slaveholders a federal right to repossess their “property,” it provided no particular machinery for them to vindicate that right. In 1793, Congress filled in the details with the Fugitive Slave Act, which imposed an affirmative duty on federal and state judges to enforce the claims of slaveholders demanding the return of runaway slaves.

Notwithstanding the 1793 Act, various Northern states adopted “personal liberty laws” that restricted the rendition of fugitive slaves and protected free blacks from being kidnapped. Pennsylvania, for example, created a presumption of freedom for black residents that could not be surmounted unless a slaveholder had registered his slave with state authorities within a certain time frame. Even if a slaveholder seized an escaped slave pursuant to federal law, therefore, he might be engaged in kidnapping, as far as Pennsylvania law was concerned.

The conflicts between federal and state fugitive slave laws eventually reached the Supreme Court in an 1842 case involving Edward Prigg, a Maryland slave catcher, who had been convicted in Pennsylvania state court for removing a black woman and her children from the commonwealth in violation of local law. Prigg appealed his conviction to the Supreme Court on grounds that he had complied with the federal Fugitive Slave Act, which, he argued, trumped Pennsylvania law. The Supreme Court agreed, upholding the constitutionality of the federal act and striking down the conflicting provisions of Pennsylvania’s law. Moreover, Prigg v. Pennsylvania laid down the broad dictum that states could not interfere with federal officials charged with implementing federal law, including the Fugitive Slave Act.

The Prigg decision did advance states’ rights in one respect: the Court said that Pennsylvania itself had no obligation to assist the central government in carrying out the Fugitive Slave Act. Thus, though a state could not stop federal agents from enforcing the act, it could stop its own officials from doing so. In essence, the Court had endorsed the concept of state interposition: the right of a state to refuse to participate in implementing federal law. This doctrine has its roots in the Virginia and Kentucky Resolutions of 1798, written by James Madison and Thomas Jefferson, respectively, and has been upheld in modern times by the Supreme Court as the “anti-commandeering rule” (Printz v. United States, 1997).

In response to Prigg, Pennsylvania adopted a new personal liberty law, withdrawing all state support for the Fugitive Slave Act. Under this law, state judges could not lift a finger to enforce the federal law, and state jails could not hold runaway slaves. Other states followed with stronger personal liberty laws, greatly complicating the ability of slaveholders to recapture fugitive slaves.

The Southern states didn’t celebrate these assertions of states’ rights. To the contrary: they called on the federal government to crack down on the wayward states. The Georgia legislature, in a typical example, passed a resolution declaring it the “imperative duty of Congress” to enforce slaveholders’ rights. The fugitive slave issue soon became part of the broader question of slavery’s expansion into new states and territories. Under the Compromise of 1850, California gained admission as a free state, while New Mexico and Utah were organized as slave territories. The District of Columbia abolished slavery, while Congress passed a new Fugitive Slave Act.

The Fugitive Slave Act of 1850 called for the appointment of federal commissioners in every state with authority to issue and execute warrants for the capture of runaway slaves. The act empowered the commissioners to summon a posse comitatus (in English: a lynch mob), and “all good citizens” were “hereby commanded” to join the posse. Captured blacks were denied the benefit of jury trials—commissioners and judges were ordered to try any fugitive slave case “in a summary manner.” Commissioners were paid ten dollars if they ruled in favor of the slaveholder but only five dollars if they ruled against him. All in all, it was one of the most brutal laws of the antebellum period—enacted by the federal government at the behest of slave states to quash the rights of free states.

Once its provisions began to bite, the Fugitive Slave Act led to greater calls for Northern states’ rights. In 1854, a federal marshal seized Anthony Burns, a runaway slave working in Boston, and brought him before the fugitive slave commissioner. Though Burns was represented by noted lawyer Richard Henry Dana, Jr.—author of the seafaring classic Two Years Before the Mast—he was returned to slavery. Amid protests in the streets of Boston, abolitionist preacher Theodore Parker called for “calm, deliberate, systematic action . . . for the defense of personal liberty and the State Rights of the North” (emphasis added).

After the Burns case and the Kansas-Nebraska bill of 1854, which reopened the slavery issue in areas where it had been closed for years, at least seven Northern states enacted new personal liberty laws aimed at negating the new Fugitive Slave Act. One of those states was Wisconsin, where a local antislavery editor, Sherman Booth, had been arrested in 1854 for interfering with federal marshals attempting to capture an escaped slave named Joshua Glover. The Wisconsin Supreme Court ordered Booth released on grounds that the Fugitive Slave Act was unconstitutional. The marshal appealed to the U.S. Supreme Court and had Booth rearrested. Again, the Wisconsin Supreme Court released Booth. State and federal courts rendered conflicting decisions until the Supreme Court had the last word in its Ableman v. Booth decision: on March 7, 1859, the Court unanimously held that states had no power to object to the conditions under which their citizens are imprisoned by federal authorities. This strongly pro-national decision was written by Chief Justice Roger Taney, the principal author of the Dred Scott decision.

Speaking in Milwaukee, Carl Schurz gave his “State Rights” speech in response to the Ableman decision. The Wisconsin legislature responded to the Booth case by adopting a set of resolutions nullifying the Fugitive Slave Act. In words borrowed from the Virginia and Kentucky Resolutions, the Wisconsin legislature declared that each state had a sovereign right to judge for itself whether a federal law transgressed the Constitution. And when Congress did pass an unconstitutional law, the legislature called for “positive defiance.”

A related issue was “slave transit”—that is, the ability of slaveholders to visit or travel through free states and territories with their slaves without fear of their slaves being emancipated. This was a critical issue because even temporary slavery was abhorrent to free states. Many Northern jurists cited the policy laid down by British courts in the eighteenth century: that a slave is emancipated the moment he or she sets foot on free soil. And they cited the danger of a slippery slope: If a master could bring one slave into a free state, why not 100 slaves? If the slave could stay for one week, why not one year?

Beginning in the 1840s, most Northern states adopted increasingly restrictive rules on slave transit, some barring masters from bringing slaves into their territory for any length of time. The Northern states had every right to adopt such policies, but pro-slavery forces showed little regard for states’ rights in this area. Instead, many slaveholders asserted a federal right to travel with their slaves that would supersede conflicting state laws.

The alleged federal right of slave transit was a stretch. Southerners invoked various constitutional provisions, including Article IV’s command to grant “full faith and credit” to each state’s official acts, as well as its guarantee of “privileges and immunities,” but nothing in the text directly addresses the issue. Slaveholders exploited a sympathetic federal judiciary to establish a right to export slavery “temporarily” to other states. In 1841, Supreme Court Justice Henry Baldwin asserted that state laws restricting slave transit violated the Constitution by usurping federal supremacy over interstate commerce. Baldwin was speaking only for himself—the Court’s majority did not concur with him—but his views anticipated and probably influenced later federal court decisions pushing back against pro-freedom laws in Northern states.

The federal judiciary’s campaign against state emancipation laws reached its zenith in Chief Justice Taney’s infamous opinion in Dred Scott v. Sandford (1857). Dred Scott had been a slave of John Emerson, an army surgeon. Over the years, Scott had lived with Emerson in Illinois, a free state, and in the territory of Upper Louisiana (now Minnesota), in which slavery had been “forever prohibited” under the 1820 Missouri Compromise. After Emerson’s death, Scott sued the administrator of Emerson’s estate, John Sandford, to gain his freedom, based on his prolonged residence on free soil. Having been legally free in those places, the argument went, Scott could not be forced back to his former status.

After losing in the Missouri Supreme Court and a lower federal court, Scott appealed to the U.S. Supreme Court with the help of an antislavery lawyer who agreed to take the case pro bono. Despite good representation, Scott lost. Writing for a 7-2 majority, Taney held that Scott, as a black man, had no legal right to bring a suit—any suit—in federal court. The right to sue in federal court belongs to citizens, Taney ruled, and it was legally impossible for blacks to become citizens. Even if some misguided states thought that they could confer citizenship on emancipated slaves, not even free blacks could become “citizens of the United States.”

Before Dred Scott, few people thought of federal citizenship as a distinct category. Rather, the accepted view was that if a person was a citizen under state law, he would also be a citizen under federal law. Taney’s decision imposed a national rule of white-only citizenship, undercutting the long-standing Northern tradition of free black citizens. While a black might technically be entitled to freedom under state law, after Dred Scott, he could not assert that right in federal court. Nor could he vote in federal elections or exercise any other federal right.

With Taney’s new definition of federal citizenship established, the case should have been over. But the Court went on to declare that even if Scott had a right to bring his suit, he would lose anyway. Notably, Taney rejected Scott’s claim that he had gained his freedom in the Louisiana Territory under the terms of the Missouri Compromise. To reach that result, Taney held that the Missouri Compromise was an unconstitutional deprivation of “property” without due process.

Strictly speaking, Taney was opining only on the validity of a federal law, but the Court’s rationale—that the emancipation of a sojourning slave amounted to an unconstitutional invasion of property rights—could be equally applied to state laws purporting to liberate slaves in transit. Such laws were proliferating in the North. In New York, for example, the highest court had recently ruled that, under state law, slaves became free the minute they entered the state.


THE GRANGER COLLECTION, NYC
A handbill warning runaway slaves in Boston that they could be captured and returned, even from a free state

Northern politicians feared that Dred Scott spelled the end of their efforts to emancipate blacks—not nationally but within their own states and territories. It is this fear that lies at the heart of Abraham Lincoln’s “House Divided” speech, which launched his 1858 bid for election to the U.S. Senate. Lincoln blasted the Court’s decision as a dangerous interference with states’ rights. The Supreme Court’s next logical step, Lincoln warned, would be to hold that the Constitution “does not permit a state to exclude slavery from its limits.”

“We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their state free,” said Lincoln, “and we shall awake to the reality, instead, that the Supreme Court has made Illinois a slave state.” Lincoln was not alone in his defense of state sovereignty against encroachments by the central government. The Republican Party itself had been “organized to protest against the invasion of State rights,” as journalist Edward Payson Powell wrote in 1897. Specifically, the party was galvanized by the outrage caused by the use of federal troops in the new state of Kansas to enforce a pro-slavery constitution against the wishes of many Kansans. In light of Dred Scott, Republicans feared a federal government conspiracy to allow the “slaveocracy” to extend slavery into the states and territories.

Lincoln lost his Senate bid to Stephen Douglas, after which he launched a national speaking tour. Lincoln stayed on message—but the message was not a call for the federal government to abolish slavery. Rather, it was a warning against the use of federal power to nationalize slavery. In at least 16 public addresses, Lincoln predicted the eventual “nationalization of slavery” if Chief Justice Taney and his coconspirators were not checked by the Republican Party. In the wake of Dred Scott, the New York Daily Times warned that “slavery is no longer local, it is national.” Law professor Paul Finkelman notes in An Imperfect Union that, in the years before the Civil War, “the philosophy of states’ rights or state sovereignty was adopted by many northerners” seeking to arrest the spread of slavery.

Contrary to all these historical facts, Dred Scott is often portrayed as a states’ rights decision. In an essay for PBS, law professor Jeffrey Rosen describes the case as a victory for “the most radical states’ rights Democrats.” Meanwhile, the “Exploring Constitutional Law” website run by the law school of the University of Missouri–Kansas City, for example, describes Dred Scott as an “extreme example” of a “conservative court” promoting states’ rights. That’s a little like calling Roe v. Wade an extreme example of pro-life jurisprudence.

Threats of secession were bandied about in the decades running up to the war—but they were as likely to come from Northern abolitionists as Southern slaveholders. Many Americans shared Lincoln’s view that the Union could not “endure, permanently, half slave and half free.” Lincoln did not seek to break up the Union, but some in the North did. Abolitionist William Lloyd Garrison, for example, used his position as editor of The Liberator to call for “the repeal of the Union between North and South,” as he wrote in 1842. Two years later, the American Anti-Slavery Society passed a resolution at its annual meeting “that secession from the present United States Government is the duty of every Abolitionist.” The logic of Northern secession was twofold. First, the free North could disassociate itself from an immoral institution; second, a hypothetical Northern republic would have no Fugitive Slave Clause, and thus, it could be a haven for escaped slaves.

Meanwhile, in the South, those who wanted to break up the Union, known as “fire-eaters,” numbered a distinct minority. In 1850, the fire-eaters pushed for popularly elected state conventions to consider secession, only to retreat after the Georgia and Mississippi conventions voted overwhelmingly to stay in the Union. Mississippi (Jefferson Davis’s home state) declared that secession “is utterly unsanctioned by the Federal Constitution.”

Up until the first shots were fired at Fort Sumter, slavery’s defenders were not known for resisting federal power. To the contrary, they had been exploiting federal power: to expand the reach of slavery, to enforce alleged federal rights to travel with (or capture) slaves, and to silence abolitionists. For decades, the slave interests had dominated Congress and the Supreme Court. The last thing they wanted was states’ rights—they owned Washington. When the South did embrace secession, it was not because the federal government had done anything to abolish slavery; rather, the election of Abraham Lincoln and the rise of the Republicans meant that the Northern states would be permitted to get away with what the South considered illegal nullification.

Consider Mississippi’s declaration of secession, which argues that Mississippi was forced to leave the Union because the Northern states had “nullified the Fugitive Slave Law” (emphasis added). Likewise, South Carolina’s declaration complains that Northern states “have enacted laws which either nullify the Acts of Congress [such as the Fugitive Slave Act] or render useless any attempt to execute them” (emphasis added). Georgia’s declaration rebuked Congress for failing to suppress antislavery speech—though freedom of speech was thought to be a matter of state jurisdiction—because abolitionists were committing “offenses against the laws of nations.”

Even in the Confederacy itself, states’ rights were seen as a potential threat to slavery. The Confederate Constitution was a nearly verbatim copy of the U.S. Constitution—except that, when it came to slavery, it gave more power to the central government and less to the states. On the issue of slave transit, for example, the Southern document “severely limited state power in an explicit attempt to create a more unified Confederacy,” according to Finkelman. Slaveholders were given an absolute right to bring their slaves into other states for indefinite periods, even if the host state wanted to abolish or limit slavery. The Confederate Constitution also included an expanded Fugitive Slave Clause that gave masters additional rights to capture slaves, including those who had become free under the laws of a sister state.

No sane African-American would support the Tea Party, MSNBC host Chris Matthews said in 2013, because it is “a group that is basically pro-states’ rights.” Yet contrary to many such arguments you hear today, the Civil War was not sparked by federal efforts to abolish slavery: there were no such efforts before the South seceded. The war arose from Northern assertions of states’ rights and from the South’s frustration at the federal government’s failure to rein in those assertions. After the war, however, it became irresistible for federal politicians—eager to justify an expanded role for the national government—to associate states’ rights with the Confederacy and, therefore, slavery. By 1909, progressive journalist Herbert Croly could assert—with little fear of contradiction—that the growth of federal power since Reconstruction had been necessary to slay “the double-headed problem of slavery and states’ rights.” The rest is history—sort of.

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