Apparently, the selfevident truth that all people deserve life, liberty and the pursuit of happiness is far from settled.
This article was published by The New York Times on the 7th of November 2018.
This is not the first time America has been torn apart over how to respond to people of color desperate to escape inhuman conditions.
Like many Americans, I’ve been following events at our southern border — the separation of children from their parents; the president’s denigration of nonwhite migrants as criminals, rapists and animals; his bluster about denying birthright citizenship to their children; and his pledge to send federal troops to intercept a dwindling caravan of frantic refugees.
To my ears, it all sounds eerily familiar. This is not the first time America has been torn apart over how to respond to people of color desperate to escape inhuman conditions. Nor is it the first time a president has threatened to deploy federal troops to return them to the horrors from which they fled. I’m thinking, of course, of African-Americans, who were regarded for much of American history not as human beings but as a species of animate property no different from cattle and sheep. Their circumstances under slavery were certainly different from those of illegal immigrants today. For one thing, the authorities in their “homeland,” the American South, wanted to keep them rather than lose them. Slave owners worked hard to prevent their slaves from running away. South Carolina adopted its first “Act to Prevent Runaways” as early as 1683.
A hundred years later, Georgia established a nightly slave patrol in its main port city that came to be known as the “Savannah Watch.” In the waning years of British rule, colonial officials favored draining wetlands in order to prevent “deserting slaves and wild beasts” from finding shelter in the swamps. Yet despite such efforts, when delegates from the former British colonies convened at Philadelphia in 1787, the problem of runaway slaves posed a serious threat to the project of creating a new nation. If a durable union was to be forged between the South, where slavery was the bedrock of economy and culture, and the North, where it appeared headed toward extinction, slaves running for freedom across America’s internal border would have to be stopped. In Article IV, Section 2, Clause 3 of the Constitution, the founding fathers attempted to stop them:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
Charles Cotesworth Pinckney, delegate from South Carolina, exulted that “we have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before.” Pinckney spoke too soon. Stating the principle proved much easier than carrying it out — just as chanting “Build the Wall!” has proved easier than building it. From the Southern point of view, citizens in any state, Northern or Southern, were obliged to return runaways just as they would be obliged to return stray livestock or stolen cash. But as the nation expanded westward, the boundary between slavery and freedom became longer and more porous. Northern states put up barriers to enforcement, including “personal liberty” laws guaranteeing jury trials for fugitives and prohibiting state officials from assisting in returning them to the South. Slave owners tried to cut off the problem at the source. Shoes — issued to field slaves to prevent foot injuries that could sideline them from work — were collected at night to discourage slaves from taking flight.
From Georgia and the Carolinas to Virginia and Tennessee, runaways resisting arrest could be killed with impunity — and the only witness might be the killer himself. Under such conditions, most fugitives never made it very far. Some were mutilated — tendons cut, faces branded — as warnings not to try again, and to others not to try at all. Still, they kept on trying, just as in our own time the immigrants keep on coming. In 1841, when Charles Dickens came to the United States on a lecture tour, he was amazed by newspaper notices, “coolly read in families” as “a part of the current news and small-talk,” offering rewards for returning runaways:
Ran away, a negro woman and two children. A few days before she went off, I burnt her with a hot iron, on the left side of her face. I tried to make the letter “M.”
By the 1840s, despite all measures to contain them, the flow of runaways had made the fugitive slave problem, in the words of Senator John C. Calhoun of South Carolina, “the gravest and most vital of all questions, to us and the whole Union” — so grave that calls for secession arose throughout the South.
In an effort to blunt the rising sentiment for disunion, Congress tried to solve the problem once and for all by shifting enforcement responsibility from the states to the federal government. In August of 1850, it passed a bill “to provide for the more effectual execution of the third clause of the second section fourth article of the Constitution of the United States” — known ever since as the Fugitive Slave Act. In September, President Millard Fillmore signed it into law. It was a law without mercy.
To accused fugitives arrested under its authority, it denied the most basic right enshrined in the Anglo-American legal tradition: habeas corpus — the right to challenge, in open court, the legality of their detention. It forbade them to testify in their own defense. It ruled out trial by jury. Except for proof of freedom, such as emancipation papers signed by a former owner, it disallowed all forms of exonerating evidence, including evidence of beatings or rape while the defendant had been enslaved. It criminalized the act of sheltering a fugitive and required local authorities to assist the claimant in recovering his lost human property. It put the power of extradition in the hands of “commissioners” appointed by the federal government and limited the disputed issue to confirming the identity of the person who had tried to flee to freedom. If the accused could be shown to have belonged to the claimant according to the laws of the state from which she had fled, she was ordered back to captivity. Even free black people in the North — including those who had never been enslaved — found their lives infused with terror of being seized and deported on the pretext that they had once belonged to someone in the South.
The Fugitive Slave Act forced them to dread every footstep on the stairs and every knock on the door. As for the millions still in bondage in the South, it deepened the despair of the already desperate. In Ohio, one black minister who had escaped from slavery 20 years earlier remarked that Satan could now “rent out hell and move to the United States,” where he would feel more at home. In early 1851, in concert with white abolitionists, free black people began to organize resistance. In Boston, slave catchers seized a young man known as Shadrach who had escaped a few weeks earlier from slavery in Norfolk, Va., and found work in a Beacon Hill coffeehouse. While serving breakfast, he was seized with his waiter’s apron still on and taken to the nearby courthouse. As news of the arrest spread, a mostly black and angry crowd gathered in Court Square. Led by Lewis Hayden, a fugitive from Kentucky, a group of men rushed the courtroom and hustled Shadrach into the crowd outside, which, like a “black squall” (the words of the white antislavery attorney Richard Henry Dana), swirled around him. Whisked from Boston to Cambridge, then through Concord, Leominster and Fitchburg, he eventually made it to Canada.
Theodore Parker, a white clergyman who became known as “Minister at Large for Fugitive Slaves,” declared that “if I were a fugitive and could escape in no other way, I would kill [the slave catcher] with as little compunction as I would drive a mosquito from my face.” Parker proved prophetic. In Lancaster County, Pa., a Maryland slave owner who tried to force a fugitive to return with him to Maryland was shot and killed by a local black man. In Syracuse, a biracial crowd attacked a police station where an accused fugitive was being held. Armed with clubs, axes, and a battering ram, they smashed into the building and spirited away the prisoner, who, like Shadrach, found refuge in Canada.
In Milwaukee, a fugitive named Joshua Glover, who had escaped from St. Louis, was held in jail until, as one his rescuers later remembered, “twenty strong and resolute men seized a large timber some eight or ten inches square and twenty feet long and went for the jail door; bumb, bumb, bumb, and down came the jail door and out came Glover.”
These events took place, of course, in a world vastly different from our own. In the United States of 1850, more than three million black people were still legally enslaved within the country’s own borders. Politicians — even those with qualms about slavery — did not hesitate to express frank racist contempt for African-Americans, and if called out for doing so, they did not deny it. Senator Henry Clay of Kentucky, who favored gradual emancipation, denounced Shadrach’s rescue by black Bostonians as an outrage perpetrated “by African descendants; by people who possess no part” in “our political system.”
The chief justice of the United States, Roger Taney, declared that blacks “have no rights which the white man was bound to respect.” There is an aphorism attributed to Mark Twain (though no evidence exists that he ever said it) that while history does not repeat itself, it does rhyme. The story of the fugitive slave crisis is a rhyming story filled with echoes in our own time. For one thing, Boston; New Bedford, Mass.; Syracuse; Cincinnati; and Rochester, among other places, became “sanctuary cities,” where the domestic illegal immigrants of their day sought safe haven. The left, which had once decried the principle of states’ rights, began to see the federal government as an evil force controlled by the right. Black people feared the sight of law enforcement officers in the streets.
For large sectors of the public, the legitimacy of Congress and the courts collapsed. Politics became radically polarized. The leading intellectual of the North, Ralph Waldo Emerson, reacted with horror at the thought that a man “who has run the gauntlet of a thousand miles for his freedom” must now, by law, be hunted down and sent “back again to the dog-hutch he fled from.”
Meanwhile, a leading newspaper in the South, the Georgia Citizen, declared it past time to send “a naval and military force” sufficient “to batter down the walls of Boston and lay it in utter ruin” as reward for its sedition. But the strongest “rhyme” between fugitive slaves in the 19th century and illegal immigrants today is their shared anguish — the “degenerating sense of nobodiness,” in the Rev. Dr. Martin Luther King Jr.’s devastating phrase — inflicted by a society that treats them as non-persons.
People demeaned in this way forced Americans then, and force us now, to confront the central question of our history: Who is — or isn’t — recognized as fully human? Our Declaration of Independence was supposed to answer this question with the proposition that “all men are created equal” and “endowed by their creator with certain unalienable rights,” including “life, liberty, and the pursuit of happiness.” At certain decisive moments in our history, attempts have been made to extend this principle beyond the cadre of the propertied white males who first articulated it.
In 1854, as the crisis over slavery deepened, Abraham Lincoln called upon America to “readopt the Declaration of Independence, and with it the practices and policy which harmonize with it.”
By destroying slavery, the Civil War brought what he called a “new birth of freedom” for black Americans. The postwar constitutional amendments sought to guarantee the rights of citizenship — notably the right to vote — to all American men, including former slaves and naturalized immigrants.
The New Deal tried to protect vulnerable citizens from the destructive effects of dynamic capitalism. The Civil Rights movement of the 1950s and ’60s tried to dismantle the legacy of slavery in the form of Jim Crow.
But if we’ve learned anything in the age of Trump, it’s that rights can also be constricted and rescinded. The selfevident truth that all people deserve life, liberty and the pursuit of happiness is a long way from settled in the American mind. The question of who is considered fully human has returned with a vengeance.
Andrew Delbanco is a professor of American studies at Columbia and author.