Guest post: A history lesson on states’ rights

Originally a comment by Al Dente on Locke, Montesquieu and Moses.

The slavery issue was a major part of states rights.

In the decades preceding the civil war the states rights issue hung over the nation like a sword. The doctrine held that certain rights and powers remained as part of the sovereignty of individual states and that the exercise of that sovereignty lay in the will of the states’ citizens. Through elected officials the citizenry bestowed certain powers to the federal government such as conducting diplomacy and declaring war. But the states had powers denied to the federal government.

In the antebellum years authority granted the federal government by the Constitution was held to be vague and differing opinions about that authority tended to be regionally held. Conflicting interpretations about slavery escalated into regional disputes.

Congress passed a fugitive slave act in 1793 as a means to protect Southern “property” rights concerning chattel slavery. As the Northern states abolished slavery they instituted personal liberty laws to safeguard free blacks and over time these laws made the 1793 act ineffective.

With the spread of Northern and Western antislavery sentiments, a new fugitive slave act became a critical part of the Compromise of 1850. It was the one concession to Southern states written into the legislation and a test of the North’s commitment to personal property rights. Under the act, Northern officials were responsible for returning fugitive slaves to their owners. Any person found guilty of assisting a fugitive slave was subject to six months imprisonment and a $1000 fine (at this time a skilled workman like a blacksmith or carpenter made a wage of about $1 per day) plus, if the slave had not been recaptured, reimbursement of the market value of the slave. The act denied fugitives a jury trial or habeas corpus protection. Many Northerners regarded the act as a flagrant violation of fundamental personal rights and Northern state legislatures passed new personal liberty laws which weakened the 1850 fugitive slave act.

Although politicians had expected the fugitive slave act to relieve regional tensions, they soon saw that it had become a propaganda tool for abolitionists, who deliberately violated the act. In the decade before the civil war fugitives who made it to the North were rarely returned to their masters. The act sharpened the rift between North and South. More than anything, it grew into a symbol of determined resistance for both pro- and anti-slavery factions and became one of the key issues leading to irreconcilable disunion in 1861.


  1. Omar Puhleez says

    Chattel slavery in the southern US system contrasted to the serfdom operating until 1861 in Russia.

    The landowner did not own the serf. This contrasted with the system in the USA where the negro slaves were chattels; that is, they were regarded in law as the disposable property of their masters. In Russia the traditional relationship between lord and serf was based on land. It was because he lived on his land that the serf was bound to the lord.

    Although the southern US came close to European feudalism, it lacked many of the latter’s finer characteristics. For example the monastic communities, as collective landowners, came to own serfs just as any lord would. In the later age of European colonialism, the people of a somewhat democratic European power like France or Britain would come to own all the people of a colonial nation, like say, Vietnam or Ireland. Notionally at least, the people of France owned the people of Vietnam.
    The European ruling classes, now matter how much they had conceded to the democratic impulses of the masses at home, were never interested in any form of democracy for their colonies. For much the same reason, it was illegal in the pre-Civil War US South to teach slaves to read, and giving them reason to pride themselves as individuals was discouraged.

  2. lorn says

    IMHO one of the worse aspects of the Fugitive Slave Act was that it allowed southerners seeking their slaves, termed property, to impress northerners and demand, regardless of their individual views or choice, to help hunt down escaped slaves. Even though you might be anti-slavery a southerner, or any slave hunter, could demand that you help hunt slaves, and failure to do so was against the law. This effectively made every northerner involuntarily complicit in slavery.

  3. Kongstad says

    So is it fair to say that the southern States were interested, not in state rights, but federal rights. If the northern States undermined federal property protection, then they were the ones championing states rights.
    My perception is that when confederate sympathizers today say that secession was not about slavery but states rights, they actually mean the rights of the southern states, and not the rights of the northern. It’s that perception wrong?

  4. says

    Kongstad, you’re dead on about neo-confederates and the actual confederates alike. The level of blatant hypocrisy in period texts about the issue gets pretty extreme.

    When South Carolina finally staged the counterrevolution that it had threatened in one form or another for decades, the published a list of reasons for it. The document included this complaint:

    The same article of the Constitution stipulates also for rendition by the several States of fugitives from justice from the other States.

    The General Government, as the common agent, passed laws to carry into effect these stipulations of the States. For many years these laws were executed. But an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution. The States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, have enacted laws which either nullify the Acts of Congress or render useless any attempt to execute them. In many of these States the fugitive is discharged from service or labor claimed, and in none of them has the State Government complied with the stipulation made in the Constitution. The State of New Jersey, at an early day, passed a law in conformity with her constitutional obligation; but the current of anti-slavery feeling has led her more recently to enact laws which render inoperative the remedies provided by her own law and by the laws of Congress. In the State of New York even the right of transit for a slave has been denied by her tribunals; and the States of Ohio and Iowa have refused to surrender to justice fugitives charged with murder, and with inciting servile insurrection in the State of Virginia. Thus the constituted compact has been deliberately broken and disregarded by the non-slaveholding States, and the consequence follows that South Carolina is released from her obligation.

    This from the same state that pioneered the theory that states could nullify federal law within their bounds whenever they felt like it. “States’ rights” was always a strategy employed for particular ends, chiefly the protection of slavery, and never an end in itself. Specifically, it was a strategy for preserving slavery in the minority section against a majoritarian threat to its continued existence. When Southerners had control of the national government, as they did almost constantly until March of 1861, they rarely cared much about limiting its power. Quite the opposite, so long as they considered slavery viable within the Union they were quite committed to extending that power.

    In 1860, the state of Virginia was actually pursuing a Dred Scott style case that would have put before Roger Taney’s Supreme Court whether such a thing as a free state was even legally possible. They wanted to strike down New York’s law that slaves taken into the state in transit and resident there too long became free. If that went, then slaveholders would have gained the power to hold their human chattels indefinitely within the free states. At that point, the distinction between a free and slave jurisdiction became meaningless. But when Virginia decided that while it would not rush to join South Carolina and the rest for its own sake, it would rush to join the movement against suppressing the Deep South’s counterrevolution. That more or less killed interest in the lawsuit.

  5. weatherwax says

    A little clarification on freedmenspatrol’s post. It was common for wealthy southerners to summer in The Hamptons, and bring a few of their personal slaves with them. New York had always looked the other way, but was more and more unwilling to do that.

    And for a little more hypocrisy: It was illegal, in the southern states, to advocate abolition. You could be imprisoned for talking about it, much less writing about it. The southern states wanted the northern states to pass similar laws, but the northern states refused. This added to the tension.

  6. busterggi says

    Some states apparently have always been more equal than others – no wonder we still have the Electoral Collage to defy actual democracy.

  7. Al Dente says

    freedmanspatrol @4

    When Southerners had control of the national government, as they did almost constantly until March of 1861, they rarely cared much about limiting its power.

    The South had been losing control of the federal government slowly but surely. Five of the first seven presidents came from the South. The next president from a purely Southern state was Jimmy Carter of Georgia elected in 1976. After the 1830 census the South had fewer Representatives than the North and West (but more than either). Part of the Compromise of 1850 was to keep the number of slave and free states equal so the slaveholders didn’t become a minority in the Senate.


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