“Within the Forms of Law”: Politics and Activism, 1850s and Today

by Evan Turiano

The Trump era has seen popular protest unlike any in half a century. And yet, even in this new age of American protest, the recent fight against the Trump administration’s separation of undocumented migrant families feels unique. Maybe it is because of the moral universality of its message, “Keep Families Together.” Regardless, resistance to immigrant family separation is also unique among Trump-era protests because of the forceful pressure it has applied on electoral politics.

From high profile senators like Elizabeth Warren to local figures such as Michigan’s Brenda Lawrence, scores of politicians flocked to the U.S.-Mexico border this summer.  The weekend before New York’s federal primary, Congressional hopeful Alexandria Ocasio-Cortez opted to visit West Texas rather than canvass the Bronx and Queens. Importantly, Democrats like Warren and New York’s Kirsten Gillibrand have adopted what began as a “radical” element of Ocasio-Cortez’s platform, the call to abolish the Immigration and Customs Enforcement agency (I.C.E.). Hundreds of municipalities and states have changed laws at home to try and avoid complicity in federal immigration enforcement.

This buzz of political activity is a response to constituent pressure. Ocasio-Cortez, Gillibrand, and Warren are all up election this fall, and the latter two appear to have presidential ambitions. They are going beyond empty platitudes and providing substantive policy initiatives. Here we see two intertwined relationships that are central to American protest movements: that of activists to electoral politics, and that of local and state policy to federal policy. Activists have applied political pressure most effectively on the state and local levels. The fugitive slave crisis of the 1850s provides a historical roadmap for embracing formal politics as a means toward activist ends in the United States.

Historians and pundits have identified numerous connections between Trump’s xenophobic policies and the 1850 Fugitive Slave Act.[1] Like Trump’s policies, the 1850 Fugitive Slave Act cast a massive imposition of federal policing power on both individual and state rights. The law compelled Northern citizens to participate in the recapture of alleged fugitives from slavery and threatened to jail anyone that aided fugitives. The law prevented the accused from testifying in court or receiving a jury trial. The law defanged Northern courts and effectively stripped black Americans of any legal rights they had managed to previously secure.[2]

Both the 1850 Fugitive Slave Law and Trump’s child separation directives reveal tensions in our federal system. Both were federal measures that influenced policy areas that were contested between federal and state jurisdiction.[3] Both laws superseded state and local policies, and both overruled the collective will of communities that had passed those policies. Resistance to Trump’s border policies also mirrors resistance to the 1850 law. Both resistance movements applied electoral pressure on local- and state-level politicians. Activists in both cases successfully pushed for the non-involvement of local law enforcement, courts, and jails.

The 1850 Fugitive Slave Law and Trump’s child separation policy both spurred immediate activist organization. Within a year of the passage of the 1850 Fugitive Slave Law, “scores” of community organizations convened across the North to strategize resistance to the law.[4] June 2018 saw more than 600 marches and protests across the United States to protest Trump’s immigration policies, from New York to Appalachia to the U.S.-Mexico border.

Both protest movements turned that immediate response into organized electoral pressure, forcing the hands of politicians who may have preferred to stay quiet and ousting those who failed to match the outrage of their constituents. The descending of candidates on the child detention facilities along border speaks for itself. Politicians rightfully calculated that their precious campaigning hours were more effectively spent in Brownsville, Texas than in front of their constituents.

During Congressional debates over the Compromise of 1850, Northern politicians were universally aware of their constituents’ disdain for the proposed fugitive slave law. Leaders of the New York Whig party had “never seen such unanimity in favor of any one thing, as in favor of the repeal of that fugitive slave law.” An observer in Boston agreed, declaring the law “repudiated by all parties, by general consent.”[5]

The 1850 law generated such broad outrage—opposition “by general consent”—because it was a site of political convergence. For those Northerners who detested slavery, the new fugitive slave law brought slavery home, all but negating efforts to abolish slavery in the North. As historian James Oakes observes, “So long as southern slaveholders claimed the right to go into the North and enforce the slave codes of their own states, northern soil could never be genuinely free soil.”[6] At the same time, Northerners who were ambivalent about Southern slavery saw the law as a threat to local authority. Scholars of early American law have demonstrated that law enforcement, judicial processes, and citizenship were sites of state sovereignty. The 1850 Fugitive Slave Law was an attack against that autonomy.[7]

Activist pressure against both federal policies resulted in state and local legislative action. Over the course of the 1850s, state legislatures in Vermont, New Hampshire, Maine, Massachusetts, Connecticut, Ohio, Michigan, and Wisconsin enacted “Personal Liberty Laws” which promised legal protections to black residents in spite of the provisions of the 1850 Fugitive Slave Law.[8] Some of these laws specifically forbade the participation of state law enforcement officials, and the use of state jails and courthouses, in the enforcement of the 1850 law.

These restrictions reflect those of modern “sanctuary cities,” or municipalities that have enacted laws requiring that local officials do not cooperate with I.C.E. detentions and deportations. As of May 2018, six states and over 140 cities and counties had enacted these provisions.[9] As during the 1850s, numerous states and municipalities have rushed to cancel jailing and training contracts with I.C.E. as a badge of public noncompliance with Trump’s policies. While these local laws were, in both cases, technically superseded by the federal policies, they cast harsh light on the contradictions in the federal system and put local judges in the difficult position of enforcing contradictory laws. Activists recognized this gray area as an opportunity to apply pressure on local officials.

During the 1850s, constitutional changes made many of these local law enforcement figures more vulnerable to angry constituents. New Hampshire, Ohio, Indiana, Michigan and Wisconsin all adopted new state constitutions that changed the elevation of judges, sheriffs, and justices of the peace from governor’s appointments to popular vote.[10] These officials, facing a choice between enforcing contradictory policies on accused fugitives, were now under direct electoral pressure from a public that hated the 1850 Fugitive Slave Law.

Marshals, commissioners, and judges who participated in the enforcement of the 1850 Fugitive Slave Act met scorn in the North. Historian R. J. M. Blackett argues that the ostracism commissioners faced because of the law led to the federal government’s perennial failure to hire a sufficient number of commissioners, as well as widespread resignations among those who did accept the posts.[11] Slave catchers faced even more wrath in the North, occasionally being detained by local law enforcement, having their hounds poisoned, and suffering physical violence.[12] The public shaming of complicit officials in 2018 such as Sarah Sanders, Stephen Miller, and Kirstjen Nielsen are analogous, if somewhat tame in comparison.

Scholars of slavery and emancipation have long debated the degree to which antislavery activism was “in” or “out” of formal politics. When historians view law as static and immovable, the 1850 Fugitive Slave Law seems dominant, and abolitionism appears to  foment only outside of politics and law.[13] But when we heed E. P. Thompson’s call to embrace our “inheritance of struggle about law, and within the forms of law,” we find activists seizing and enlarging individual power in the federal system, capitalizing on America’s complex layers of sovereignty to empower the will of the people.[14]

Evan Turiano is a History PhD Student at the Graduate Center, City University of New York. He is also a Graduate Teaching Fellow at Queens College, CUNY. Turiano received his M.A. in History from the Graduate Center, CUNY and his B.A. in American Studies from Trinity College in Hartford, CT. His current work examines the relationship between slave flight and the secession crisis. His writing has appeared previously in The Activist History Review as well as in Muster: A Blog of the Journal of the Civil War Era. He lives in Queens, NY and can be reached here.

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Notes

[1] See, for example: Judith Giesburg in the Washington Post’s Made by History, H. Robert Baker in Tropics of Meta, Eric Foner in The Nation.

[2] For an overview of the law’s operation, see: Eric Foner, Gateway to Freedom: The Hidden History of the Underground Railroad (New York: Norton, 2015), 124-125.

[3] On the increasing degree of state sovereignty in immigration policy, see: Aristide Zolberg, A Nation by Design: Immigration Policy in the Fashioning of America (Russell Sage/Harvard University Press, 2006), 340.

[4] R. J. M. Blackett, The Captive’s Quest for Freedom: Fugitive Slaves, the 1850 Fugitive Slave Law, and the Politics of Slavery (New York: Cambridge University Press, 2018), 14-17.

[5] Stephen E. Maizlish, A Strife of Tongues: The Compromise of 1850 and the Ideological Foundations of the American Civil War (Charlottesville: University of Virginia Press, 2018), 223.

[6] James Oakes, The Scorpion’s Sting: Antislavery and the Coming of the Civil War (New York: Norton, 2014), 32.

[7] The scholarship on state law and state citizenship in early America is rich and evolving, what follows is surely incomplete. See: William J. Novak, “The Legal Transformation of Citizenship in Nineteenth-Century America,” in Meg Jacobs, William J. Novak, and Julian E. Zelizer, eds. The Democratic Experiment: New Directions in American Political History (Princeton: Princeton University Press, 2003); Maeve Glass, “Citizens of the State,” University of Chicago Law Review 85 no.4, June 2018, 865-934; Ariela Gross, What Blood Won’t Tell: A History of Race on Trial in America (Cambridge: Harvard University Press, 2008); Laura F. Edwards The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill, NC: University of North Carolina Press, 2009).

[8] Ibid., 219-222.

[9] https://cis.org/Map-Sanctuary-Cities-Counties-and-States. While the author finds the Center for Immigration Studies’ anti-immigrant agenda morally abhorrent and politically disastrous, their compilation of sanctuary city laws is the most thorough that was readily available.

[10] Michael F. Holt, The Political Crisis of the 1850s (New York: Wiley, 1978), 106-107.

[11] Blackett, The Captive’s Quest for Freedom, 56-59.

[12] Louis Filler, The Crusade Against Slavery: 1830-1860 (New York: Harper, 1960), 202-3

[13] For an excellent analysis of the historiographical separation of politics and antislavery, see: Corey Brooks, “Reconsidering Politics in the Study of American Abolitionists,” The Journal of the Civil War Era 8 no. 2 (May 2018) 291-317.

[14] E. P. Thompson, Whigs and Hunters: The Origins of the Black Act (New York: Pantheon, 1975).