On March 24, 1859, a leading statesman who would soon find himself fighting in the Civil War gave a speech entitled “State Rights.” In it, he warned of federal “usurpation” of state sovereignty on the issue of slavery, and he urged states to exercise their powers of nullification and interposition. He told his listeners to “stand firm” against federal power, declaring, “Here is the battlefield, every man to his gun!”1
The speaker was not—as you might be thinking—Stonewall Jackson or Robert E. Lee. Rather, it was Carl Schurz: one of the leading abolitionists 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, a US senator, and the secretary of the interior. There is a park named after him on Manhattan’s Upper East Side.
Schurz’s speech was no aberration. Just one year earlier, another Northern politician had given a major speech warning that federal courts were threatening to deprive states of their right to regulate slavery within their own borders. That politician was Abraham Lincoln; the speech was his “house divided” address. In fact, as the law professor Paul Finkelman notes, 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.2
How can this be true? If any proposition is sacred among educated Americans, it is that “states’ rights” was the rallying cry of slave masters and federal power was the tool of abolitionists. The widely used textbook Making a Nation teaches college students that antebellum Southerners used the term “states’ rights” as a euphemism for “the right of the states to maintain slavery and the right of individuals to hold property in slaves.”3 A plaque at the Smithsonian’s National Portrait Gallery flatly refers to states’ rights as a doctrine “which protected the institution of slavery.” During a 2011 interview on National Public Radio, Adam Goodhart, the director of the Center for the Study of the American Experience at Washington College, 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.”4 At this point, the interviewer, Terry Gross, compared Southern invocations of states’ rights with the rhetoric of those opposing President Obama’s healthcare law.5
This conventional history provides a handy rhetorical weapon for left-wing 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.6 But two things are missing from the conventional history: facts and logic. If states’ rights was a doctrine that “protected” slavery, as the Smithsonian asserts, it’s fair to ask: Protected it against what? Presumably against a federal law that would have imposed abolition on unwilling Southern states. But the federal government never came close to enacting such a law before the Civil War. What the federal government did was just the opposite—use its power to safeguard the institution of slavery and to protect the alleged property rights of slaveholders.
Before the Emancipation Proclamation (1863), the federal government posed little threat to slavery. Sporadic proposals by Northern congressmen to abolish slavery were purely symbolic; they had no chance of passing. Antislavery amendments introduced in the House of Representatives in 1818 and 1839 never made it to a full floor vote. An 1844 proposal to abolish representation of the slave population under the infamous three-fifths clause of the Constitution was overwhelmingly spurned by both houses of Congress.7
During the first half of the nineteenth century, proslavery politicians were much more likely to rely on federal power than on states’ rights to protect the institution. The United States Constitution implicitly permitted slavery and even 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 the 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.8
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.”9 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, proslavery 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.10
Fugitive Slaves
The major states’ rights issue leading up to the war was the right of free states and territories to exclude slavery within their own borders. This right was surprisingly (to modern eyes) tenuous, subject to various efforts to use federal power to coerce free states to recognize and enforce the “property” rights of slave masters.
The Constitution’s fugitive slave clause was meant to give slave owners the right to capture runaway slaves. The clause, however, does not expressly require any state to participate in implementing its terms; rather, the clause speaks in the passive voice: the escaped slave “shall be delivered” to its owner. A slave owner had a federal right to regain his “property,” but the Constitution provided no particular machinery for him to vindicate that right. In 1793, Congress filled in the details with the Fugitive Slave Act, which imposed an affirmative duty on both federal and state judges to enforce the claims of slave owners demanding the return of runaway slaves.
Notwithstanding the 1793 act, various Northern states passed “personal liberty laws” putting restrictions on the rendition of fugitive slaves and protecting free blacks from kidnapping. Pennsylvania, for example, created a presumption of freedom for black residents that could not be defeated unless a slave owner had registered his slave with state authorities within a certain time frame. Thus, even if a slave owner seized an escaped slave pursuant to federal law, he might be engaged in kidnapping as far as Pennsylvania law was concerned.11
A classic example of proslave interests using federal power to trump the rights of free states arose in the 1842 Supreme Court case of Prigg v. Pennsylvania. Edward Prigg, a Maryland slave catcher, had been convicted for removing a black woman and her children from Pennsylvania without complying with the provisions of Pennsylvania’s personal liberty law. Prigg appealed his conviction to the Supreme Court on the grounds that he had complied with the federal Fugitive Slave Act, and that was enough. The Supreme Court agreed, upholding the constitutionality of the federal act, and striking down the conflicting provisions of Pennsylvania’s law. Moreover, the court laid down the broad dictum that states could not interfere with federal officials charged with implementing federal law, including the Fugitive Slave Act.12
For all of its flaws, 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, although 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 principle of interposition first laid out in the Virginia and Kentucky Resolutions of 1798.
The nonslave states quickly took advantage of this one glimmer of states’ rights. In 1847, 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 that greatly complicated the ability of slave owners to recapture fugitive slaves.13
The Southern states did not celebrate these assertions of states’ rights. To the contrary, they called on the federal government to use its power 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 slave masters’ rights.14 The fugitive slave issue was folded into the broader question of the expansion of slavery into new states and territories. Under the Compromise of 1850, California was admitted as a free state while New Mexico and Utah were organized as slave territories. Slavery was abolished in the District of Columbia, and a new Fugitive Slave Act was agreed to.
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 “command” all citizens in the area to join a posse comitatus (in English: a lynch mob); those who refused to join the posse faced fines or even jail time.15 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 slave owner, 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.16
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. Although Burns was represented by the noted lawyer Richard Henry Dana—author of the seafaring classic Two Years Before the Mast—he was returned to slavery. Amid protests in the streets of Boston, the abolitionist preacher Theodore Parker called for “calm, deliberate, systematic action . . . for the defense of personal liberty and the State Rights of the North.”17
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 defeating the new Fugitive Slave Act.18 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 to be released on the grounds that the Fugitive Slave Act was unconstitutional. The marshal appealed to the US Supreme Court and had Booth rearrested. Again the Wisconsin Supreme Court released Booth.
Abolitionists cheered the Wisconsin court’s defiance of federal authority. Horace Greeley, the editor of the New York Tribune, urged other states to follow the Badger State’s “refreshing” example: “By another year we expect to see Ohio holding the same noble course. After that we anticipate a race among the other Free States in the same direction till all have reached the goal of State independence.”19 Likewise, Benjamin Wade, an antislavery congressman from Ohio, praised “noble Wisconsin” because “a State, in the last resort, crowded to the wall by a General Government seeking by the strong arm of its power to take away the rights of the State, is to judge of whether she shall stand on her reserved rights” (emphasis mine).20
The proslavery majority on the US Supreme Court, however, was not so enthusiastic about state independence. On March 7, 1859, the court unanimously held that Wisconsin had no power to object to the conditions under which her citizens were imprisoned by federal authorities. This strongly pronational decision was written by Chief Justice Roger Taney, the principal author of the Dred Scott decision (discussed later in this chapter).21
Carl Schurz’s “State Rights” speech was an immediate reaction to the Booth decision; it was delivered in Milwaukee. The Wisconsin legislature would respond to the Booth case by adopting a set of resolutions nullifying the Fugitive Slave Act. In words borrowed from the Kentucky Resolutions of 1798 and 1799, the Wisconsin resolutions 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”—in other words, nullification.
Slave Transit
A related issue was “slave transit”—that is, the ability of slave owners to visit, or travel through, free states and territories 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. Besides, there was the danger of a slippery slope. If a master could bring one slave into a free state, why not a hundred? If he could stay for one week, why not one year?
As with the fugitive slave issue, slave transit was initially a matter of state comity; free states adopted policies to accommodate slaveholders traveling through their territory. But in the mid-nineteenth century, comity began to break down amid the rising friction between the North and South. 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 proslavery forces showed little regard for states’ rights in this area. Instead, many slave masters asserted a federal right to travel with their slaves that would supersede conflicting state laws.22
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. Although the argument was weak, slave masters would exploit a sympathetic federal judiciary to establish a right to export slavery “temporarily” to other states.
The issue of slave transit took center stage in a high-profile case called Strader v. Graham. The question in Strader was whether three African Americans who had been enslaved under Kentucky law could still be held to servitude after they had been emancipated under Ohio and Indiana law (because they had made several trips to those states). Kentucky’s highest court held that Ohio and Indiana law did not change the status of the three slaves. In 1850, the US Supreme Court affirmed the Kentucky court’s decision ostensibly because the federal court could not interfere with a Kentucky court’s decision on a matter of Kentucky law. That sounds like a victory for states’ rights, except that Strader did not concern a conflict between state and federal law; it concerned a conflict between state laws. On the one hand, Kentucky law imputed a permanent slave status, even to slaves who had left the state; on the other hand, Ohio and Indiana asserted the right to emancipate slaves within their borders. The Supreme Court used its power to favor the Kentucky approach of forcing free states to recognize slavery. Strader was anything but a states’ rights decision.
Dred Scott and the Color-Coded Constitution
Like the Booth case, Strader exemplifies Taney’s agenda to use the power of the federal judiciary to entrench slavery. His crowning achievement in this regard was his 1857 opinion in Dred Scott v. Sandford.
Dred Scott had been the slave of John Emerson, an army surgeon. Over the years, Scott had lived with Dr. Emerson in the free state of Illinois and in the territory of Upper Louisiana (now Minnesota), in which slavery had been “forever prohibited” under the Missouri Compromise of 1820. 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 US Supreme Court with the help of an antislavery lawyer who agreed to take on the case pro bono. Despite being well represented, Scott lost.
Writing for a 7–2 majority, Taney held that Scott had no legal right to sue for his freedom; indeed, as a black man, Scott had no right to bring any suit in federal court. According to Taney, the right to sue was a privilege of citizenship, and it was legally impossible for African Americans to become citizens. Even if some misguided states thought they could confer citizenship on emancipated slaves, not even free blacks could become “citizens of the United States.”
Before Dred Scott, few people thought that there was a distinct status of federal citizenship. Rather, the conventional view was that if a person was a citizen under state law, he would also be a citizen under federal law.23 Taney’s decision imposed a uniform rule of white-only citizenship, completely undercutting the long-standing Northern-state tradition of free black citizens. While an African American might be entitled to freedom under state law, he could not assert that right in federal court or 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 majority went on to hold that, even if Scott had a right to bring his suit, he would lose anyway. First, Scott could not rely on Illinois law because, under Strader v. Graham, the Missouri courts had no obligation to recognize the emancipation laws of sister states. Secondly, 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 unconstitutional—a startling development that upset over thirty years of fragile equilibrium between North and South. Strictly speaking, the court 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 deprivation of “property rights”—could be equally applied to state laws purporting to liberate slaves in transit. One of Taney’s associate justices, Samuel Nelson, vaguely asserted that the states’ power to legislate on the topic of slavery was “restrained by the Federal Constitution.” What had Nelson meant by that? It was far from an abstract question, as Northern states had continued to restrict the ability of slave masters to bring their “property” into their jurisdiction. In New York, for example, the highest court had held that, under state law, a group of Virginia slaves had gained their freedom the minute they entered the Empire State.
The Supreme Court had produced the staunchest possible defense of slavery, but it was not a defense of states’ rights. To the contrary, the court’s decision was openly hostile to such rights, given its rule of federal citizenship and its implicit warning against state attempts to emancipate slaves. A day after the decision was announced, the New-York Daily Times lamented that “slavery is no longer local, it is national.”24 The fear of nationalized slavery lies at the heart of Lincoln’s “house divided” speech, with which he launched his 1858 bid for election to the US Senate. The speech is an indictment of the court, to be sure, but it is also a bracing defense of states’ rights, specifically the right of free states to remain free. Seizing on Justice Nelson’s dictum that the US Constitution might “restrain” states from regulating the status of African Americans within their borders, Lincoln warned that the Supreme Court would soon 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.”25 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 the journalist Edward Payson Powell wrote in 1897.26 Specifically, the party was galvanized by the outrage caused by the use of federal troops in the new state of Kansas to enforce a proslavery constitution against the wishes of many Kansans. In light of Dred Scott, Republicans feared a conspiracy among the branches of the federal government to allow the “slaveocracy” to extend slavery into the states and territories.27
Lincoln lost his Senate bid to Stephen Douglas, after which he immediately launched a national speaking tour. Lincoln stayed relentlessly on message—and 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 sixteen public addresses, Lincoln predicted the eventual “nationalization of slavery” if Chief Justice Taney and his coconspirators were not checked by the Republican Party.28
Contrary to all these historical facts, Dred Scott is often portrayed as a states’ rights decision. A victory for “the most radical states’ rights Democrats”—that’s how the law professor Jeffrey Rosen describes the case in an essay for PBS.29 Meanwhile, Exploring Constitutional Law, a website run by the law school of the University of Missouri–Kansas City, describes Dred Scott as an “extreme example” of a “conservative court” promoting states’ rights.30 That’s a little like calling Roe v. Wade an extreme example of pro-life jurisprudence.
Most Likely to Secede
Mainstream commentators who draw a straight line between South Carolina’s support of nullification in 1832 and Southern secession in 1860 have turned history upside down. The Civil War was precipitated not by Southern nullification—there was no antislavery law for the South to nullify—but by the persistent efforts of Northern states to nullify proslavery federal laws.
Threats of secession were bandied about in the decades running up to the war—but the threats were as likely to come from Northern abolitionists as from Southern slaveholders. Many Americans shared Lincoln’s view that the Union could not “endure, permanently, half slave and half free.” One way to address this issue was to break up the Union, and for a while it looked like the momentum for secession was stronger in the North. The abolitionist William Lloyd Garrison, for example, used his position as the 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 stating that “secession from the present United States Government is the duty of every Abolitionist.” A few weeks later the Massachusetts Anti-Slavery Society adopted a similar resolution.31 The logic of Northern secession was twofold. The free North could disassociate itself from the slave South, but also a hypothetical Northern republic would have no Fugitive Slave Clause, and thus it would be a safe haven for escaped slaves. According to the political commentator Bill Kauffman, abolitionists viewed secession as “the instrument by which slavery was not preserved but abolished, as border states, one by retreating one, emancipated their fast-disappearing slaves” (emphasis his).32
Meanwhile, in the South, those who wanted to break up the Union, known as “fire-eaters,” were 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) declared that secession “is utterly unsanctioned by the Federal Constitution.”33
Up until the first shots were fired at Fort Sumter, the defenders of slavery 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. As late as February 1861—when Virginia called a convention to consider secession—the “great majority” of delegates arrived in Richmond expecting the commonwealth to stay in the Union, according to the historian Edward L. Ayers.34
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 Northern states would be permitted to get away with what the South considered to be 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 mine). 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 mine). Georgia’s declaration rebuked Congress for failing to suppress antislavery speech, even though freedom of speech was thought to be a matter of state jurisdiction, because abolitionists were committing “offenses against the laws of nations.”35
Secession, when it came, was not an expression of states’ rights but something different altogether. States’ rights is an aspect of federalism, the system of dual sovereignty created by the Founding Fathers to govern the relations between state and central governments. A state that secedes from the Union is not participating in federal-state relations—it is opting out of the system entirely. Secession is a rejection of federalism.
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 US 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.36 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, even those who had become free under the laws of a sister state.
The Civil War was fought over the issue of slavery; nothing in this chapter is meant to cast doubt on that. But the war was not sparked by federal efforts to abolish slavery; there were no such efforts before the South seceded. To the extent states’ rights contributed to the outbreak of war, they were Northern assertions of states’ rights, and the South’s frustration at the failure of the federal government to rein in those assertions.
After the war, however, federal politicians—eager to justify an expanded role for the national government—found it irresistible to associate states’ rights with the Confederacy and, therefore, with slavery. By 1909, the journalist Herbert Croly could assert—with little fear of contradiction—that the growth of federal power since Reconstruction was necessary to slay “the double-headed problem of slavery and states’ rights.”37 The stage was set for a federal coup against the states, under the banner of “progressivism.”