In 1850, when President Millard Fillmore signed the second Fugitive Slave Act, due process was under serious attack by the Federal government.
The law compelled people of all States to “assist” Federal marshals and their deputies with the apprehension of suspected runaway slaves. It brought all trials involving alleged fugitive slaves under Federal jurisdiction. It included large fines for anyone who aided a slave in his escape, even by simply giving him food or shelter.
On top of it, bounties were paid to commissioners in fugitive slave cases: $10 if a person was sent back to slavery and $5 if the person was allowed freedom. The Federal government was paying people to capture other people and send them to slavery.
The act also suspended habeas corpus and the right to a trial by jury for alleged “slaves,” and made their testimony inadmissible in court. On the other hand, the written testimony of the supposed slave master, which could be presented to the court by slave hunters, was given preferential treatment.
In response to the original Fugitive Slave Act of 1793, Northern States began to pass what were known as “personal-liberty laws.” After the second Fugitive Slave Act was enacted by Fillmore, these efforts intensified.
Vermont passed a Habeas Corpus Law, requiring State judicial and law enforcement officials to actually help capture fugitive slaves there. Massachusetts took a really strong stand and passed a law that allowed kidnapping charges for anyone trying to use these “indefinite detention” provisions of the Fugitive Slave Act.
No Federal agent was charged with kidnapping in Massachusetts, though. But that was only because no escapee was ever captured for return after the law was passed. The State response was working.
In fact, Northern States were so successful overall that when South Carolina seceded 10 years later, the people there named the attempts to bypass the Fugitive Slave Acts as one of their primary reasons for leaving the Union. Their publicly released “Declaration of Causes” states:
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 Fugitive Slave Acts or render useless any attempt to execute them…
NDAA: The Road Backward
In 1942, Franklin Delano Roosevelt signed an executive order that authorized the creation of military zones “from which any or all persons may be excluded.”
This led to the roundup of about 120,000 Japanese-Americans and Japanese citizens living here in California and along the West Coast. Without due process, they were relocated and sent to internment camps. Many more were classified as “enemy aliens” and subjected to increased restrictions.
Like the Fugitive Slave Acts and Japanese mass internment, the Federal government has again taken new powers never intended under the Constitution. Under sections 1021 and 1022 of the National Defense Authorization Act, the Feds again claim the power to classify people in such a way that they no longer have rights.
President Barack Obama and Congress have dropped the terms “fugitive slave” and “enemy alien.” Instead, they use “suspected terrorist” as a way to eliminate due process these days.
Today, in the spirit of the 19th century Personal-Liberty Laws, States and communities around the country are taking action against NDAA detention powers. Virginia recently became the first State in the country to pass a law refusing compliance with or assistance to Federal agents carrying out detentions without due process against citizens of that State. A number of other States are working on the same.
But, it’s not just States. More than 10 communities are on board too. For example, in Fairfax, Calif., officials passed legislation that states the town will:
Instruct all our Town of Fairfax agencies to decline requests by federal agencies acting under detention powers granted by the NDAA that could infringe upon residents’ freedom of speech, religion, assembly, privacy, or rights to counsel.
Just The Beginning
When Northern States protected habeas corpus against Federal encroachments in the 19th century, they were doing their duty to protect liberty and the Constitution. Today, States and communities are doing the same.
They can and should serve as a powerful check on Federal power. In fact, the framers counted on it. It’s all about local actions. As Democrats and Republicans continue to work together in Washington to take away our rights, our communities must and will rise up to save them.