When The South Fought Against States’ Rights

“To the old Union they had said that the Federal power had no authority to interfere with slavery issues in a state. To their new nation they would declare that the state had no power to interfere with a federal protection of slavery. Of all the many testimonials to the fact that slavery, and not states rights, really lay at the heart of their movement, this was the most eloquent of all.” —William C. Davis,

In A Nutshell

In summer 2015, Texas quietly adopted a new set of textbooks to be taught in schools. Among other controversies, the textbooks claimed the Civil War was less about slavery than it was about states’ rights. The logic goes that the Southern states were defending their constitutional freedoms against an encroaching federal government. But a largely forgotten Supreme Court case tells a different story. After a slave escaped to Wisconsin, representatives from Southern states lined up to denounce Wisconsin for not following the federal Fugitive Slave Act. In one way, they were arguing against states’ rights.

The Whole Bushel

In 1852, a Missouri slave known as Joshua Glover made a daring escape from the St. Louis farm he was working on. Fleeing under the cover of night, he somehow managed to sneak out of the South and into the free state of Wisconsin to the north. It was a journey that took him two weeks. Yet by the time he arrived, his ordeal was only just beginning.

Two years beforehand, the federal government had passed the Fugitive Slave Act. In its simplest form, the act allowed escaped slaves to be recaptured and dragged back to the South. It applied to all territories, including to states such as Wisconsin that didn’t have slavery. Although he was now free, Joshua Glover wasn’t out of the woods yet.

In March 1854, a group of slave catchers discovered Joshua’s whereabouts. They beat him, put him in a wagon, and drove him to a Milwaukee jailhouse. There his story would have probably ended were it not for a man known as Sherman Booth.

A firebrand abolitionist, Booth reacted to Joshua’s capture like a one-man Justice League. He immediately got a Wisconsin county judge to issue a writ of habeas corpus for the former slave’s release. When the US marshal holding Joshua refused, citing federal law over state law, Booth gathered a large crowd and stormed the jailhouse. Joshua was freed and spirited away to Canada, where he lived out the rest of his days as a free man. Booth, on the other hand, was promptly thrown in jail.

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Here’s where things get interesting. When the federal government tried to bring Booth to trial for breaking the Fugitive Slave Act, the Wisconsin courts blocked them at every turn. They argued Wisconsin had a constitutional right to protect its residents from unconstitutional federal laws. In effect, they were arguing that states’ rights trumped federal law. The South disagreed.

The contemporary Southern press argued fiercely that Wisconsin had no right to ignore the federal Fugitive Slave Act. Southern federal jurists and Supreme Court justices repeatedly emphasized the primacy of federal law over states’ rights. In his 1859 opinion in the case (Ableman v. Booth), Chief Justice Roger B. Taney (a slave-owning Southerner) claimed there was no constitutional claim to states’ rights over federal law. To claim otherwise “would subvert the very foundations of this Government.” In short, Southern slave owners themselves were siding with the federal government.

Although the Supreme Court upheld his jailing, Booth was freed after the Civil War broke out. President James Buchanan issued a pardon personally. Today, over 150 years after the war ended, the antebellum South is being recast as a fierce protector of states’ rights over government rules. To contemporary Southerners keen to enforce the Fugitive Slave Act, this would doubtless seem like the strangest of ironies.

Show Me The Proof

Encyclopaedia Britannica: Ableman v. Booth
History News Network: The Supreme Court Case that Proves that the Antebellum South Wasn’t Really Concerned with States Rights
Wisconsin Historical Society: A Journey from Slavery to Freedom

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