One of the most enduring narratives in American history is that the doctrine of states’ rights, or federalism, was essential to the preservation of slavery. The South, so the story goes, constantly relied on state and local laws to stymie national attempts to end slavery, and southern secession was the final step in this process.
So ingrained in the American consciousness is this story that even today the concept of states’ rights cannot be raised without protests that the resurrection of slavery is the ultimate goal. But the real history of slavery and federalism is much more complicated and interesting than we’re told.
Do States Have Rights?
Before we explore that history, we need to define what we mean by “states’ rights.” When the thirteen American colonies separated from Great Britain, they claimed to be “free and independent states,” united in their independence. In the usage of the time, the word “state” was a synonym for “country,” so the colonies were literally claiming to be free and independent nations with the rights and sovereignties over their own affairs that countries have.
When the states later banded together under the Articles of Confederation, the pact between them stated that the new government would only have powers that were “expressly delegated.” This meant that it would only be able to do what the states explicitly gave it the authority to do – and nothing else. The states retained control over everything not delegated.
After the Revolutionary War, when the Constitution was written and ratified, this concept lived on implicitly, and was later made explicit through the Tenth Amendment. When we say, then, that the states’ have rights, we are simply saying that there is a limit to what the federal government can legally do. In other words, the people of the individual states are not legally obliged to be endlessly subservient to the whims of national politicians.
It is puzzling that such a simple political concept should be blamed for all the evils of slavery. As a political philosophy it is based on nothing more than the idea that the closer government is to the governed, the more accountable and less oppressive it is likely to be. There is certainly nothing inherent in federalism that makes it more likely to permit evil than centralization would be. In fact, the reverse is true: the more centralized a government is, the more harm it can do to a greater number of people.
On the face of it, the supposed link of states’ rights with slavery seems dubious. It becomes even more so when the real role of the federal government in protecting slavery is investigated.
The Constitution, Slavery & Fugitive Slave Laws
The Constitution originally had two key provisions that related to slavery. The first, a moderately anti-slavery provision in Article I, Section 9, allowed Congress to put an end to the importation of slaves into the United States after 1808, which Congress did. The second, in Article IV, Section 2, required states to return runaway slaves to slaveholders. This was a critically important safeguard for slavery because it effectively extended the border to which slaves could safely escape all the way to Canada. It also transferred the enforcement costs of slavery from the slave owners themselves to non-slave owners.
This kind of government-enforced subsidization of slavery was a common tactic of slaveholders who, although a minority even in the South, were often wealthy and politically powerful. In the southern states, slaveholders organized local slave patrols that, among other activities, apprehended runaways and enforced restrictions on slaves’ ability to travel. Participation in these patrols, which were comprised largely of poor whites, was mandatory.
In, Emancipating Slaves, Enslaving Free Men, Jeffrey Rogers Hummel writes,
“Loosely connected with the local militia, patrol duty was compulsory for most able-bodied white males. Exemption usually required paying a fine or hiring a substitute. The slave patrols thereby affixed a tax that shifted enforcement costs to small slaveholders and poor whites who owned no slaves.”
Large plantation owners knew that this system was essential to preserving slavery. George Fitzhugh, a pro-slavery southern writer, observed that slave owners “could not hold (slaves for) a day” if not for the aid of the slave patrols.
Just as slaveholders manipulated state and local laws to protect slavery, they also used federal laws for the same purpose. Although the Constitution’s Fugitive Slave Clause already existed, slaveholders wanted stricter laws and harsher enforcement. Congress passed additional pro-slavery laws beginning in 1793, culminating in the Fugitive Slave Act of 1850. This law permitted southern slave catchers to enter free states and claim that any black person living there was a runaway slave. It further denied accused runaways the right to a jury trial before being given into the custody of slaveholders, thus depriving them of the traditional right of habeas corpus.
Instead of a jury trial, the determination of whether an accused person was a fugitive slave was to be made by a new group of federal commissioners. Far from being impartial judges, these commissioners operated under an incentive system that was weighted in favor of slaveholders. Commissioners received $5 for every accused fugitive they freed and $10 for every one sent to the plantation. The law even allowed commissioners to force Northerners, even those who were morally opposed to slavery, to aid in the capture and deportation of runaway slaves. Anyone who refused to cooperate was subject to fines and jail time.
This law amounted to a license to kidnap people based on race and force them into slavery. Hummel observes that professional slave catchers “could make huge profits by legally kidnapping free blacks in the North and selling them into slavery in the South.” And it was all protected by federal law.
Centralization: The Slaveholder’s Friend
Further national support for slavery emerged in early 1861, when both houses of Congress approved an amendment to the Constitution that was designed to convince southern states to stay in the Union. The amendment, publicly supported by Abraham Lincoln, would have constitutionally protected southern slavery forever.
All of this shows that, leading up to the Civil War, political centralization – not decentralization – was the primary tool of slave owners. As the Tenth Amendment Center’s Mike Maharrey points out,
“It took centralized power to maintain a system of slavery in the United States. It was the Constitution itself that cemented slavery into the American system, and it was federal power that preserved and sustained it. Nationalists used slavery to expand federal power, and slavers depended on the nationalists to protect their interests.”
In other words, the federal government deserves significantly more blame for preserving slavery than it generally receives. In the absence of federal support, slavery in the South would have been much weaker in 1861 than it actually was. Yet nationalists have offloaded all of the blame due them onto the states and have successfully claimed that it was the states, clinging to their sovereignty, who were the real villains.
By deflecting the blame it deserves, the advocates of centralization have been able to claim that their political philosophy, one that defended and supported slavery for over half a century, was solely responsible for ending it.
Given the actual record of the federal government in protecting slavery, we might be forgiven for viewing this claim with skepticism.
Note: This article is part of a series on the Civil War. Click here to see all the articles in the series.