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Fugitive Slaves and Undocumented Immigrants: Testing the Boundaries of Our Federalism

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Fugitive Slaves and Undocumented Immigrants: Testing the Boundaries of Our Federalism University of Miami Law Review Volume 74 Number 3 Article 3 4-28-2020 Fugitive Slaves and Undocumented Immigrants: Testing the Boundaries of Our Federalism Sandra L. Rierson Thomas Jefferson School of Law. Follow this and additional works at: https://repository.law.miami.edu/umlr Part of the Constitutional Law Commons, Immigration Law Commons, and the Law and Society Commons Recommended Citation Sandra L. Rierson, Fugitive Slaves and Undocumented Immigrants: Testing the Boundaries of Our Federalism, 74 U. Miami L. Rev. 598 (2020) Available at: https://repository.law.miami.edu/umlr/vol74/iss3/3 This Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. ARTICLES: Fugitive Slaves and Undocumented Immigrants: Testing the Boundaries of Our Federalism SANDRA L. RIERSON* Federalism—the dual system of sovereignty that invests both the nation as a whole and each individual state with the authority to govern the people of the United States of Amer- ica—is a foundational pillar of American democracy. Throughout the nation’s history, political crises have tested the resilience of this dual system of government established by the United States Constitution. The fundamental contra- diction of slavery in a nation founded on the principle that “all men are created equal” triggered the nation’s most prominent existential crisis, resulting in the Civil War. In the years leading up to that war, the federal government’s pro- tection of the institution of slavery, via the Fugitive Slave Acts, clashed with the personal liberty laws of the free states. These states had eliminated slavery within their own bor- ders, and hence did not embrace federal laws compelling them to allow (or assist in) the pursuit and capture of puta- tive slaves living on free soil. The intensity of the resistance within these states increased as the federal government * Associate Professor, Thomas Jefferson School of Law. This Article has benefited from the helpful feedback and critique of Ilene Durst, Paul Finkelman, Eric Foner, Julie Greenberg, Shaun Martin, and Bryan Wildenthal, for which I am very grateful. I also received helpful comments and insights from the participants in the 2018 University of Detroit-Mercy Law Review Symposium, The Return of Sanctuary Cities: The Muslim Ban, Hurricane Maria, and Everything in Between. I am also indebted to Christopher Netniss and Sierra Martin for their invaluable research assistance, and to Thomas Jefferson School of Law for its support. 598 2020] FUGITIVE SLAVES AND UNDOCUMENTED IMMIGRANTS 599 ratcheted up efforts to enforce the Fugitive Slave Acts, with little consideration given to the conflicting values of Ameri- can citizens living in free states. The most crucial federalism crisis of today stems from conflicting state and federal perspectives as to immigration. The Trump administration’s “zero tolerance” approach to “illegal” immigration has been tone deaf to the mores of people who live in diverse states such as California, espe- cially as to immigrants who are seeking asylum. The Presi- dent has personally repudiated and even mocked the na- tion’s long-standing commitment to the legal principle of non-refoulement, which prohibits the forcible return of ref- ugees to countries where they face serious threats to their lives or freedom. Moreover, the Trump administration’s heavy reliance on executive action to achieve its goals, ra- ther than the legislative process, has generated policies that lack widespread support among the national citizenry, not just that of an individual state. The United States may learn some valuable lessons by reflecting on its past, specifically the history of the federal laws that sought to force the free states to recognize slavery within their borders. Heavy-handed attempts to compel com- pliance with federal law tend to engender resistance rather than cooperation, especially when, in the eyes of many, the federal law lacks both moral and democratic legitimacy. At a minimum, the federal government should not attempt to commandeer California and similar states to implement fed- eral immigration policies that are misaligned with the values of the majority of their citizens. The safety valve of federal- ism allows these states to decline to do so. INTRODUCTION .............................................................................601 I. THE FEDERAL GOVERNMENT’S ROLE IN PROTECTING SLAVERY IN THE UNITED STATES DURING THE ANTEBELLUM ERA .................................................................604 A. The Origins of the Constitution’s Fugitive Slave Clause ..............................................................................605 600 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 74:598 B. The Fugitive Slave Act of 1793 and the Anti- Kidnapping Laws of the Northern States .........................611 C. Prigg v. Pennsylvania and the Triumph of Federal Supremacy ........................................................................618 D. Northerners Fight for Local Control: The Second Wave of Personal Liberty Laws .......................................625 E. The Triumph of Federal Power via the Fugitive Slave Act of 1850 .......................................................................631 1. CONTINUED LEGISLATIVE RESISTANCE IN THE FREE STATES ........................................................................637 2. SLAVE RESCUES AND JURY NULLIFICATION ................643 II. FUGITIVE SLAVES AND UNDOCUMENTED IMMIGRANTS: THE PRESENT ECHOES THE PAST ............................................648 A. The Higher Law Fuels Resistance to Federal Enforcement on Moral Grounds ......................................648 B. Deprivation of Due Process in the Nineteenth Century and Today.........................................................................659 1. SLAVE OR FREE? ..........................................................660 2. EXCLUDABLE ALIEN OR ASYLEE? ...............................662 3. FEDERAL SUPREMACY AND THE LIMITS OF STATE POWER TO REGULATE MATTERS CONCERNING FUGITIVE SLAVES AND UNDOCUMENTED IMMIGRANTS ................................................................683 C. The Anti-Commandeering Principle as a Vehicle of State Resistance ...............................................................688 1. THE LIMITS OF FEDERAL COERCIVE POWER ................689 2. STATES AND CITIES PUSH BACK: THE PERSONAL LIBERTY LAWS OF TODAY ...........................................694 3. FEDERAL TOOLS FOR INDUCING STATE COOPERATION .............................................................701 a. Is Information Sharing an Exception to the Anti- Commandeering Rule? ..........................................701 b. Can Cooperation Be Compelled via the Attachment of Conditions to the Provision of Federal Funds to the States? .................................704 CONCLUSION .................................................................................709 2020] FUGITIVE SLAVES AND UNDOCUMENTED IMMIGRANTS 601 INTRODUCTION History does not repeat itself, but it rhymes.1 The presence of slavery in some, but not all, of the United States posed an existential threat to the dual system of federalism created by the U.S. Constitution from the earliest days of the Republic.2 The South’s dogged quest to protect the institution of slavery is tradi- tionally associated with a states’ rights philosophy.3 However, dur- ing this era, the South relied heavily on federal power to preserve slavery in the South and enable its spread throughout the territories.4 The battle over fugitive slaves—enslaved people who escaped their masters and fled to free states in the North—pitted the federal Fugi- tive Slave Acts of 1793 and 1850, which granted Southerners broad powers to reclaim human “property” in free states, against free states’ personal liberty laws, which sought to protect the civil and human rights of all state citizens, including the free blacks and slaves who were at risk under the federal law.5 Today, the United States faces another challenge testing the boundaries of federalism, this time involving immigration rather 1 This quote is often attributed to Samuel Clemens, the nineteenth century author known by his pen name, Mark Twain. History Does Not Repeat Itself, but it Rhymes, QUOTE INVESTIGATOR (Jan. 12, 2014), https://quoteinvestiga- tor.com/2014/01/12/history-rhymes/. However, the true origin of the quote is un- known. See id. A passage from Twain’s satire of the Gilded Age encapsulates the idea expressed within it: “History never repeats itself, but the Kaleidoscopic com- binations of the pictured present often seem to be constructed out of the broken fragments of antique legends.” MARK TWAIN & CHARLES DUDLEY WARNER, THE GILDED AGE: A TALE OF TO-DAY 430 (1873). Historian Eric Foner has made a similar observation regarding the immigration conflict that is the subject of this Article: “History never really repeats itself, but uncanny resemblances exist be- tween the pre-Civil War years and our own time, in terms of both the actions of the federal government and the resistance it has evoked.” Eric Foner, What the Fugitive Slave Act Teaches Us About How States Can Resist Oppressive Federal Power, NATION (Feb. 8, 2017), https://www.thenation.com/article/archive/what- the-fugitive-slave-act-teaches/
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