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t w o p The Fugitive Slave Act That such a doctrine [of unlimited obedience to civil government ] should be received and acted upon by the descendants of the English Puritans; that they should have so soon forgotten the disobedience of their fathers, for many long years, to the Act of Uniformity of Charles II, and other penal laws, and the fines, imprisonments, and persecutions they suffered for conscience’ sake, is almost incredible. —J. G. Forman, The Christian Martyrs,  A VOCAL portion of Wisconsin’s citizenry, in popular assembly, had declared the Fugitive Slave Act of  unconstitutional. Their actions made the act virtually unenforceable—in practice, a nullity. But was that law unconstitutional? The Constitution, after all, mandated the return of fugitive slaves across state lines. There had been an act regarding the procedure for their return on the U.S. statute books since , and proposals to amend it had arisen on many occasions before . The law had come before both state and federal courts, and, more than once, lawyers had argued that its provisions were unconstitutional and void. Yet the U.S. Supreme Court upheld the act in  in Prigg v. Pennsylvania. In the eyes of the law, then, the Fugitive Slave Act was constitutional, and the people of Wisconsin had adopted an extralegal attack on its execution. This conclusion, while satisfyingly simple, misleads. It assumes that the law’s constitutionality was determined in the last instance by the courts and, necessarily, by the U.S. Supreme Court. It also denigrates the role of popular resistance, suggesting that it carries no constitutional weight. The latter assumption is easily dispensed with. Such resistance was a variation 26 p You are reading copyrighted material published by Ohio University Press/Swallow Press. Unauthorized posting, copying, or distributing of this work except as permitted under U.S. copyright law is illegal and injures the author and publisher. on the tradition of assembly and petitioning, a cherished constitutional right. The resolutions adopted by the Milwaukee assembly were echoed by countless other assemblies and in petitions to Congress asking for—and sometimes demanding—the repeal of the act on constitutional grounds. Given the composition of Congress in , this was unlikely, but Wisconsinites worked to change this after Glover’s rescue by making the Fugitive Slave Act a central issue in congressional elections and U.S. Senate appointments. Popular resistance was only the first stage, signaling the failure of the law to achieve the consent of the community. The next stage was to effect change through the political processes specified by the Constitution . This was part and parcel of antebellum constitutionalism. The assumption that the courts settled the question in favor of constitutionality is also flawed. It is true that the act’s supporters repeatedly cited the courts’ acceptance of the statute. But they also pointed to congressional action and to the country’s long acquiescence as decisive evidence of the act’s constitutionality. In truth, the courts had not had much to say about the matter. Most opinions upholding the Fugitive Slave Act had not presumed to test the law against the Bill of Rights to determine whether it violated civil liberties. In fact, very few of these decisions had taken seriously the question of constitutionality. This was due, at least in part, to judicial deference to congressional action in the early nineteenth century. In the first challenges to the Fugitive Slave Act in appellate courts, judges respected the law as a constitutional settlement by Congress, one that directed state and federal officers to provide for the reclaiming of fugitive slaves and left to the states the matter of protecting free black citizens. The business of the courts was not to pass judgment on the substance of the settlement but to work out its details by interpreting both federal and state law. It was not until the s that increasing political tension over slavery split apart this constitutional settlement . Northern courts were asked, in essence, to refuse to comply with the Fugitive Slave Act as a kind of constitutional resistance. Not without trepidation, some courts did begin to refuse compliance. For the most part, however, the courts attempted to hold together the old compromise that balanced the duties of fugitive slave rendition and protection of free blacks. When Justice Joseph Story authored the opinion of the court in Prigg v. Pennsylvania, the weight of settled authority establishing the constitutionality of the Fugitive Slave Act was far more qualified, circumscribed, The...

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