The Fugitive Slave Act of 1850 and its predecessor, the Fugitive Slave Act of 1793, are extremely interesting from a constitutional perspective. They were clearly “activist” statutes that depended on a “loose” construction of the Constitution that in other contexts southerners would have rejected as profoundly dangerous to their interests.
The Constitutional Provision
The relevant constitutional text appeared in Article IV, together with other clauses such as the Full Faith and Credit Clause, the Privileges and Immunities Clause and the Republican Form of Government Clause. The Fugitive Slave Clause provided:
“No person held in service or labor 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 labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”
The Clause was placed in Article IV, dealing with issues involving the States, not Article I, defining the powers of Congress. Moreover, the express language of the Clause did not authorize Congress to do anything. The Clause seems intentionally reticent. It uses the passive voice (“shall be delivered up”), and avoids describing who shall do the delivering. Nonetheless, the most reasonable inference would seem to be that it is the States that shall do the delivering up.
The Fugitive Slave Act of 1793
The absence of explicit authority did not bother the Congress of the founding era. In February 1793, the Second Congress passed the Fugitive Slave Act of 1793. In brief, the Act:
1. Authorized slave owners or their agents to seize fugitive slaves;
2. Required the owner/agent to bring the fugitive slave before a federal or state judge;
3. Upon the production of satisfactory proof, required the federal or state judge to provide the owner/agent with a certificate entitling him to transport the slave to the state from which he had fled;
4. Established a “penalty” of $500 to be “forfeit[ed]” by persons who harbored fugitive slaves or obstructed their seizure or return, recoverable by the owner in a civil action.
It is worth emphasizing how extraordinary this provision was from a constitutional standpoint. First, the text of the Constitution did not expressly give Congress the power to enact legislation dealing with any of the topics described above. In addition, the third bullet point above was particularly intrusive on the States. It required state judges to take a particular action (“. . . it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney . . .”).
The Supreme Court
The lack of express authority also did not bother the Supreme Court. In Prigg v. Pennsylvania (1842), the Court held that the Constitution gave Congress implicit authority to pass the 1793 Act. The breadth of the reasoning in Justice Story’s lead opinion is truly breathtaking:
“The fundamental principle, applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist, on the part of the functionaries to whom it is intrusted. The clause is found in the national constitution, and not in that of any state. It does not point out any state functionaries, or any state action, to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist, that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or intrusted to them by the constitution. On the contrary, the natural, if not the necessary, conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the constitution. The remark of Mr. Madison, in the Federalist (No. 43), would seem in such cases to apply with peculiar force. 'A right (says he) implies a remedy; and where else would the remedy be deposited, than where it is deposited by the constitution?' meaning, as the context shows, in the government of the United States.” (Emphasis added.)
Justice Story specifically addressed, and rejected, the contention that the 1793 Act was unconstitutional because it did not lie within the enumerated powers of Congress:
"But it has been argued, that the act of congress is unconstitutional, because it does not fall within the scope of any of the enumerated powers of legislation confided to that body; and therefore, it is void. Stripped of its artificial and technical structure, the argument comes to this, that although rights are exclusively secured by, or duties are exclusively imposed upon, the national government, yet, unless the power to enforce these rights or to execute these duties, can be found among the express powers of legislation enumerated in the constitution, they remain without any means of giving them effect by any act of congress; and they must operate solely proprio vigore, however defective may be their operation; nay! even although, in a practical sense, they may become a nullity, from the want of a proper remedy to enforce them, or to provide against their violation. If this be the true interpretation of the constitution, it must, in a great measure, fail to attain many of its avowed and positive objects, as a security of rights, and a recognition of duties. Such a limited construction of the constitution has never yet been adopted as correct, either in theory or practice. No one has ever supposed, that congress could, constitutionally, by its legislation, exercise powers, or enact laws, beyond the powers delegated to it by the constitution. But it has, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined thereby. The end being required, it has been deemed a just and necessary implication, that the means to accomplish it are given also; or, in other words, that the power flows as a necessary means to accomplish the end.” (Emphasis added)
In only one respect did Justice Story seem to doubt the constitutionality of the 1793 Act. He appeared to question whether Congress had the power to compel state judges and magistrates to act (bullet point no. 3 above):
“We hold the act to be clearly constitutional, in all its leading provisions, and, indeed, with the exception of that part which confers authority upon state magistrates, to be free from reasonable doubt and difficulty, upon the grounds already stated. As to the authority so conferred upon state magistrates, while a difference of opinion has existed, and may exist still, on the point, in different states, whether state magistrates are bound to act under it, none is entertained by this court, that state magistrates may, if they choose, exercise that authority, unless prohibited by state legislation.”
Remarkably, in a separate opinion Chief Justice Taney (later of Dred Scott fame) specifically endorsed Justice Story’s reasoning and conclusion concerning the power of Congress to pass the 1793 Act:
“I concur also in all that is contained in the opinion concerning the power of congress to protect the citizens of the slave-holding states, in the enjoyment of this right; and to provide by law an effectual remedy to enforce it, and to inflict penalties upon those who shall violate its provisions; and no state is authorized to pass any law, that comes in conflict in any respect with the remedy provided by congress. The act of February 12th, 1793, is a constitutional exercise of this power . . ..”
The Danger to the South
Ironically, then, when southerners later pushed for a stronger federal Fugitive Slave Act, culminating in the Act of 1850, they were playing a dangerous game. The legislation they sought and obtained was necessarily based on an extremely “loose” interpretation of the Constitution and broad construction of Congress’ implied powers.
An example: Article IV also contained the Republican Form of Government Clause, and, unlike the Fugitive Slave Clause, the Republican Form of Government Clause contained language suggesting that the federal government – i.e., Congress – had the power to enforce it against the States:
"The United States shall guarantee to every State in this Union a republican form of government . . .. “ (Emphasis added.)
What if Congress determined that a republican form of government required adult male enfranchisement? Did the Republican Form of Government Clause give Congress the power to enact a law requiring States to give all adult males the vote?
Even more close to home for the south was the question of slavery in the territories (and the District of Columbia). The 1793 Act specifically applied to federal territories as well as to the States. Did not the Act, then, establish a founding-era precedent demonstrating that Congress had authority under the Constitution to legislate concerning slavery in the territories and in the District? In fact, in congressional debates “advocates of the Wilmot Proviso noted with relish [that] the [1793] fugitive-slave law was thus good precedent for Congress’s power to legislate with respect to slavery in the territories.” David P. Currie, The Constitution in Congress: Descent into the Maelstrom 1829-1861 (University of Chicago Press 2006), p. 184 n. 153.
The Constitutional Provision
The relevant constitutional text appeared in Article IV, together with other clauses such as the Full Faith and Credit Clause, the Privileges and Immunities Clause and the Republican Form of Government Clause. The Fugitive Slave Clause provided:
“No person held in service or labor 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 labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”
The Clause was placed in Article IV, dealing with issues involving the States, not Article I, defining the powers of Congress. Moreover, the express language of the Clause did not authorize Congress to do anything. The Clause seems intentionally reticent. It uses the passive voice (“shall be delivered up”), and avoids describing who shall do the delivering. Nonetheless, the most reasonable inference would seem to be that it is the States that shall do the delivering up.
The Fugitive Slave Act of 1793
The absence of explicit authority did not bother the Congress of the founding era. In February 1793, the Second Congress passed the Fugitive Slave Act of 1793. In brief, the Act:
1. Authorized slave owners or their agents to seize fugitive slaves;
2. Required the owner/agent to bring the fugitive slave before a federal or state judge;
3. Upon the production of satisfactory proof, required the federal or state judge to provide the owner/agent with a certificate entitling him to transport the slave to the state from which he had fled;
4. Established a “penalty” of $500 to be “forfeit[ed]” by persons who harbored fugitive slaves or obstructed their seizure or return, recoverable by the owner in a civil action.
It is worth emphasizing how extraordinary this provision was from a constitutional standpoint. First, the text of the Constitution did not expressly give Congress the power to enact legislation dealing with any of the topics described above. In addition, the third bullet point above was particularly intrusive on the States. It required state judges to take a particular action (“. . . it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney . . .”).
The Supreme Court
The lack of express authority also did not bother the Supreme Court. In Prigg v. Pennsylvania (1842), the Court held that the Constitution gave Congress implicit authority to pass the 1793 Act. The breadth of the reasoning in Justice Story’s lead opinion is truly breathtaking:
“The fundamental principle, applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist, on the part of the functionaries to whom it is intrusted. The clause is found in the national constitution, and not in that of any state. It does not point out any state functionaries, or any state action, to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist, that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or intrusted to them by the constitution. On the contrary, the natural, if not the necessary, conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the constitution. The remark of Mr. Madison, in the Federalist (No. 43), would seem in such cases to apply with peculiar force. 'A right (says he) implies a remedy; and where else would the remedy be deposited, than where it is deposited by the constitution?' meaning, as the context shows, in the government of the United States.” (Emphasis added.)
Justice Story specifically addressed, and rejected, the contention that the 1793 Act was unconstitutional because it did not lie within the enumerated powers of Congress:
"But it has been argued, that the act of congress is unconstitutional, because it does not fall within the scope of any of the enumerated powers of legislation confided to that body; and therefore, it is void. Stripped of its artificial and technical structure, the argument comes to this, that although rights are exclusively secured by, or duties are exclusively imposed upon, the national government, yet, unless the power to enforce these rights or to execute these duties, can be found among the express powers of legislation enumerated in the constitution, they remain without any means of giving them effect by any act of congress; and they must operate solely proprio vigore, however defective may be their operation; nay! even although, in a practical sense, they may become a nullity, from the want of a proper remedy to enforce them, or to provide against their violation. If this be the true interpretation of the constitution, it must, in a great measure, fail to attain many of its avowed and positive objects, as a security of rights, and a recognition of duties. Such a limited construction of the constitution has never yet been adopted as correct, either in theory or practice. No one has ever supposed, that congress could, constitutionally, by its legislation, exercise powers, or enact laws, beyond the powers delegated to it by the constitution. But it has, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined thereby. The end being required, it has been deemed a just and necessary implication, that the means to accomplish it are given also; or, in other words, that the power flows as a necessary means to accomplish the end.” (Emphasis added)
In only one respect did Justice Story seem to doubt the constitutionality of the 1793 Act. He appeared to question whether Congress had the power to compel state judges and magistrates to act (bullet point no. 3 above):
“We hold the act to be clearly constitutional, in all its leading provisions, and, indeed, with the exception of that part which confers authority upon state magistrates, to be free from reasonable doubt and difficulty, upon the grounds already stated. As to the authority so conferred upon state magistrates, while a difference of opinion has existed, and may exist still, on the point, in different states, whether state magistrates are bound to act under it, none is entertained by this court, that state magistrates may, if they choose, exercise that authority, unless prohibited by state legislation.”
Remarkably, in a separate opinion Chief Justice Taney (later of Dred Scott fame) specifically endorsed Justice Story’s reasoning and conclusion concerning the power of Congress to pass the 1793 Act:
“I concur also in all that is contained in the opinion concerning the power of congress to protect the citizens of the slave-holding states, in the enjoyment of this right; and to provide by law an effectual remedy to enforce it, and to inflict penalties upon those who shall violate its provisions; and no state is authorized to pass any law, that comes in conflict in any respect with the remedy provided by congress. The act of February 12th, 1793, is a constitutional exercise of this power . . ..”
The Danger to the South
Ironically, then, when southerners later pushed for a stronger federal Fugitive Slave Act, culminating in the Act of 1850, they were playing a dangerous game. The legislation they sought and obtained was necessarily based on an extremely “loose” interpretation of the Constitution and broad construction of Congress’ implied powers.
An example: Article IV also contained the Republican Form of Government Clause, and, unlike the Fugitive Slave Clause, the Republican Form of Government Clause contained language suggesting that the federal government – i.e., Congress – had the power to enforce it against the States:
"The United States shall guarantee to every State in this Union a republican form of government . . .. “ (Emphasis added.)
What if Congress determined that a republican form of government required adult male enfranchisement? Did the Republican Form of Government Clause give Congress the power to enact a law requiring States to give all adult males the vote?
Even more close to home for the south was the question of slavery in the territories (and the District of Columbia). The 1793 Act specifically applied to federal territories as well as to the States. Did not the Act, then, establish a founding-era precedent demonstrating that Congress had authority under the Constitution to legislate concerning slavery in the territories and in the District? In fact, in congressional debates “advocates of the Wilmot Proviso noted with relish [that] the [1793] fugitive-slave law was thus good precedent for Congress’s power to legislate with respect to slavery in the territories.” David P. Currie, The Constitution in Congress: Descent into the Maelstrom 1829-1861 (University of Chicago Press 2006), p. 184 n. 153.
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