When constitutional law professors talk about constitutional law, they most often refer to court cases, especially the United States Supreme Court’s interpretation of the Constitution. However, I am more interested in popular constitutionalism, constitutional interpretation outside of the courts. Political advocates engage in popular constitutionalism when they invoke the constitution to support their claims. Sometimes political activists expressly invoke constitutional language and make arguments that sound in law. Other times, they invoke more general constitutional values in their political rhetoric. Perhaps the most eloquent form of popular constitutionalism occurs when people with little or no legal knowledge demand rights that sound in constitutional law. Fugitive slaves were one such group of constitutional actors.
Prior to the Civil War, some antislavery argued that slavery was unconstitutional. For example, they claimed that slavery violated the right to liberty under the Fifth Amendment Due Process Clause and natural rights which, they claimed, were protected by the Preamble to the Constitution. Some antislavery constitutionalists made arguments before courts, which were ultimately unsuccessful. However, most antislavery constitutionalists made their arguments in the political context. They formed antislavery parties, including the Liberty and Free Soil, Free Labor parties. Many of these popular constitutionalists were founders of the Republican Party.
A second group of antislavery activists participated in the underground railroad, which helped fugitive slaves to escape. For example, in 1858 leaders of the town of Oberlin, Ohio, acted together to rescue an alleged fugitive slave who had been kidnapped. Several of them were tried in federal court for violating the 1850 Fugitive Slave Act, and two were ultimately convicted. These activists knew that federal law prohibited them from assisting fugitive slaves, but they claimed that they followed a higher law under which slavery was illegal. They did not expressly invoke the constitution, but they asserted their right to resist federal law.
The fugitive slaves themselves were a third group, at the heart of this resistance. Fugitive slaves asserted their own rights claims by attempting to escape slavery. Fugitive slaves defied all odds, and certain punishment, if not death, if they were captured. Their goal was to escape to northern states and into Canada, where they could live a free life. Some fugitives sued in courts for their freedom, and surprisingly, some won. But most fugitive slaves had to hide from slave catchers, under constant threat of capture (as were free blacks). With their actions, fugitive slaves served as a catalyst for constitutional change.
Fugitive slaves brought about a constitutional crisis. Tensions mounted between people in northern states such as Ohio, who wanted to protect fugitive slaves, and southern slave owners, who believed that they had a right to have their slaves returned to them. Southern slave owners had the law on their side. Federal Fugitive Slave Acts enforced their right to retrieve their slaves. In the Dred Scott decision, the United States Supreme Court agreed that slaveholders had a constitutional right to own slaves, rejecting Scott’s claim that he could free himself by fleeing to a free state or territory.
Nonetheless, fugitive slaves and northern antislavery activists persisted, and continued to argue against the legality of slavery. Ultimately, these tensions led to the Civil War which created the conditions that enabled the end of slavery. During the war, slaves fled across northern battle lines, demanding freedom, and some Union soldiers blocked the slavecatchers who pursued them. Congress authorized military officials to “confiscate” the fugitives and set them free, a significant step in the campaign to end slavery. After the war, Republican members of the Reconstruction Congress abolished slavery and enshrined the activists’ rights claims into law with the 13th, 14th and 15th Amendments and legislation enforcing those amendments.
We are approaching the end of Black History month, in which we celebrate the contributions that African Americans have made throughout our history. We should not forget fugitive slaves, who helped to bring about the end of slavery and the expansion of individual rights in this country.