State rights vs. federal supremacy

On this day in 1793, the U. S. Congress passed the first of the fugitive slave acts. These laws required all states — including those forbidding slavery — to forcibly return escaped slaves from other states to their original owners. This first act stated, “no person held to service of labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such labor or service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”

Some Northern states immediately resisted the bounds of the 1793 Act. The discontent was such that a subsequent law, the Fugitive Slave Act of 1850 was required as a compromise. The 1850 Fugitive Slave Act required federal circuit courts to designate special commissioners to hear rendition proceedings; and it authorized commissioners as well as federal marshals to form a posse of bystanders to capture runaway slaves.

As more Northern states abolished slavery, a mounting dissention arose against the slave acts. With the 1854 passage of the Kansas-Nebraska Act — which created the territories of Kansas and Nebraska and permitted their residents to determine through popular referendum whether they would be slave-holding or abolitionist states — many Northern states could no longer countenance the fugitive slave acts. The Kansas-Nebraska Act pushed their tolerance to its breaking point.

In defiance, many Northern states adopted so-called “personal liberty” laws. Vermont was the first in 1850 with legislation that impeded the federal mechanism with three substantial roadblocks: it offered the writ of habeas corpus to detained fugitives; affirmed their right to a jury trial; and required the state’s attorney in each county to intervene on behalf of fugitives in rendition proceedings. By 1855, Maine, Massachusetts, Rhode Island, Connecticut, Ohio, Wisconsin, and Michigan, had each passed laws to prevent state officials from taking part in the enforcement of the federal law.

Every Southerner knows how these matters were eventually resolved. While all of this is an engaging pass through an important era of U.S. history, it goes to a fundamental point about our Republic: we have yet to fully establish the proper boundaries between state and federal powers. We see ample proof of this point with respect to a pair of increasingly divisive current issues: marijuana legalization and abortion rights.

As voters in Colorado and Washington passed laws permitting the recreational use of marijuana — and several others permit its medicinal use — the U.S. government finds itself in an increasingly untenable position with respect to enforcement of federal drug laws. When a proposal to permit medical marijuana was narrowly defeated by notoriously conservative Arkansas voters last November, we have a strong indication that national sentiment on the “demon weed” has turned. Stopping short of legalized marijuana, there is a collateral push in places like Kentucky to legalize the production of hemp as a cash crop. Again, the federal government finds little coverage in the emergent legal storm.

Then there’s the matter of abortion rights. Again, Arkansas provides a microcosm of the larger dynamic. With the state legislature now in the hands of the Republican party, lawmaking has a strong tincture of retribution about it. Nowhere is this more clearly seen than the question abortion rights.

As several legal scholars and abortion rights activists have argued, the legislation under current consideration is likely unconstitutional. Gov. Mike Beebe agrees, but has not said whether he would veto the bills should they pass.

For more than two centuries Americans have debated the contours of the “supremacy clause” of the U.S. Constitution (Article VI, Clause 2). Nowhere has the debate been more active than here in the South. We are a people of hard-dying tradition — even if that tradition doesn’t always serve our best interests or the interests of humanity. This caution is one of our greatest strengths, but it is one of self-evident and considerable peril.