Analogies of the Texas Abortion Law to the Fugitive Slave Acts Have It Backwards

O ne of the favorite rhetorical moves of progressives these days is to look at whatever the policy agenda or campaign of the day is and shoehorn it into a narrative in which their opponents are the heirs of slavery and Jim Crow. Now, I’m not against learning lessons from historical analogies or considering the intellectual roots of ideas, but this is frequently taken to absurd extremes, with standards applied so inconsistently that history is cited to support the exact opposite of what it actually teaches.

One current example is the bizarre use of racial history in the infrastructure debate. In September, Slate ran a column by Ariel Ron arguing that John C. Calhoun opposed federal infrastructure projects for racist reasons, so we should therefore view every objection to such projects as the heirs of Calhoun:

We who support those goals can expect Republicans (and corporate Democrats) to blow a lot of smoke in our eyes, generating word cloud after word cloud dominated by “deficits,” “inflation,” and “pay-fors.” Calhoun can help clear the air. His ideas expose the conservative, hierarchical commitments that have always worked to thwart the promise of democratic governance. . . . Monetary discipline and fiscal austerity are not necessarily smoke screens for an undemocratic political agenda. But in the current moment they are precisely that, and are operating in much the same way as they did in Calhoun’s time.

Never mind the fact that today’s arguments are mainly about who should build infrastructure projects, how much we should spend on them, what sorts of labor and environmental burdens should be placed on their construction, and how much unrelated social spending should be stuffed into “infrastructure” bills. Nobody today is arguing, as Calhoun did, that interstate infrastructure was a bad thing in itself, and any claim that allowing the constitutional principle of federal infrastructure would expand federal authority is the definition of — if I can use this phrase — a lost cause.

Now, this week, we have Pete Buttigieg arguing (based on Robert Caro’s book The Power Broker) that Robert Moses was racist in how he built infrastructure, and therefore . . . we should build more infrastructure:

Caro’s take on Moses is historically contested, but I’m not here to defend Robert Moses any more than I am to defend John C. Calhoun. What is noteworthy is the opposite lessons being drawn here. When a past opponent of big infrastructure projects is racist, that means that today’s opponents must labor under the burden of his racism. By contrast, when a past builder of big New Deal infrastructure projects is racist, that is no burden to people such as Buttigieg; to the contrary, it is more reason to build more infrastructure. Heads they win, tails you lose.

With this in mind, let us consider the latest silly analogy: comparing the Texas abortion law (SB8, now in front of the Supreme Court), which authorizes civil-damages lawsuits by any private individual against abortionists with the aim of making abortion unprofitable, to the Fugitive Slave Acts. Ian Millhiser states that: “Some historians I’ve talked to have pointed to the Fugitive Slave Act, but it’s hard to find many historical precedents for a law that has this kind of a bounty-hunter system.” Aziz Huq writes in the Washington Post that:

A more precise early historical analogue . . . would be the two infamous Fugitive Slave Acts passed by Congress in 1793 and 1850. These undercut Black citizens’ Fifth Amendment right to due process and the habeas corpus right to challenge government deprivations of liberty. Under these acts, enslavers could hire agents to search for people who had escaped to free states from slavery; they could then turn to the courts — or later to “commissioners,” appointed by federal judges — to condone the rendition back south of their “property.” (They could also turn to the courts as a first step before a seizure.). . .

Professor Huq goes on to throw some other subsequent bits of Jim Crow at the wall without bothering to notice that the “private attorney general” model adopted by SB8 has, in fact, been much more commonly used by liberals, progressives, and their allies in the plaintiffs’ bar before it was tried by anti-abortion Texas Republicans. California long had a notorious provision of its consumer-protection laws that allowed suit by any person, before its abuse was restricted by Proposition 64 in 2004. The idea of using treble or punitive damages in civil suits to deter conduct disfavored by the law has long been embedded in statutes such as the Clayton Antitrust Act and RICO. Pamela Karlan has described private attorney general suits as “one of the primary mechanisms Congress has used for enforcing civil rights.” Progressives in New York just passed, last week, a state constitutional amendment allowing “every person” to sue over a right to a “healthful” environment.

More to the point, note what Professor Huq ignores: the roles of the federal and state governments in abortion and the fugitive slave laws — the very thing that is cited as the cornerstone of this sort of argument when we’re discussing Calhoun and infrastructure. Because today, the situation is almost exactly the inverse of the posture of the Fugitive Slave Act of 1850, to the point where a better analogy (if any) would be made in the opposite direction. Then, as with abortion under Roe v. Wade today, there was a uniform federal rule: All states must give up fugitive slaves upon demand. That rule was backed by the Supreme Court in Prigg v. Pennsylvania in 1842, and the 1850 statute was designed to crack down on state resistance. (The difference, of course, was that the Court in Prigg had its hands mostly tied by the text of the Constitution, whereas Roe and its progeny are entirely invented without a basis in the document).

Then, as now, states were trying to create space to protect human rights in dissent from the federal rule. Just as states such as Texas and Mississippi today are pushing the boundaries of Roe in defense of the humanity of the unborn, many northern states after Prigg passed “personal liberty laws” that prohibited any state official from cooperating with the return of fugitive slaves, in defense of the basic humanity of runaway slaves. Like the Justice Department in the Texas case, what the Fillmore administration tried to do in 1850–51 after passage of the Fugitive Slave Act was to strong-arm state officials into cooperating with the federal regime against their will. Fillmore’s heavy-handed effort to take that freedom of conscience away from the states was opposed by citizens’ vigilante action — “vigilance committees” which, along with such committees operating for different purposes in California at the time, helped give us the word “vigilante.”

Many of these vigilance committees in the North, in fact, were organized by black community leaders. The Northern vigilantes aimed at rescuing black “fugitives” — whether or not they were escaped slaves — from federal law enforcement. They tried hiring lawyers and operating within the system, but also worked outside the law to thwart captures and removals. The vigilance committee in Boston helped some targets of the Fugitive Slave Act escape to England; Boston newspapers compared them to the Boston Tea Party. In one celebrated case in April 1851, it took 300 armed men for federal authorities to get one fugitive, Thomas Sims, out of Boston after a nine-day standoff with vigilance committee lawyers while the courthouse was chained shut. On January 15, 1851, in Springfield, Mass., 44 men and women — all of them black, many of them fugitives from slavery — formed “the United States League of Gileadites” to pledge armed resistance to the Fugitive Slave Act. Their leader, a wool merchant named John Brown, handwrote the organization’s bylaws and credo:

No jury can be found in the Northern States that would convict a man for defending his rights to the last extremity. This is well understood by Southern congressmen, who insisted that the right of trial by jury should not be granted to the fugitive.

Southerners reacted to all of this with the same hysteria over resistance to federal authority that has greeted the Texas abortion law. Their Northern allies, such as Fillmore and his secretary of state, Daniel Webster, professed themselves personally opposed to slavery, but bemoaned defiance of the courts. Fillmore and Webster and issued a joint proclamation in February 1851 “calling on all well-disposed citizens to rally to the support of the laws of their country.” Webster went further in a speech that May:

If men get together and declare a law of Congress shall not be executed in any case, and assemble in numbers and force to prevent the execution of such law, they are traitors, and are guilty of treason, and bring upon themselves the penalties of that crime. No! No! It is time to put an end to this imposition upon good citizens. . . . It is treason, treason, Treason, and nothing else. . . .

The forces defending federal supremacy went to the Supreme Court and won many victories in the 1850s, including not only the 1857 Dred Scott decision but also Ableman v. Booth, an 1859 decision upholding the criminal conviction of a Wisconsin newspaper editor who assisted the escape of a fugitive slave.

Looking back at the 1850s, it is useful to consider what arguments of structure and procedure were made in the pro- and anti-slavery causes and what we can learn from how those tools were used. But by far the more important lesson is that the American people needed to be roused to action against a monstrous evil in their midst, and eventually, they were. That is exactly what pro-lifers seek today. The SB8 case raises a tangle of procedural issues that the Supreme Court ought to resolve by being faithful to general rules of constitutional interpretation. Nobody should take seriously attempts to mutilate history to analogize a state abortion law to a federal fugitive-slave statute.