Wednesday, January 03, 2007

Ableman v. Booth X: "There Is No Middle Ground"

The second objection that Justice Smith addressed was an intensely practical one. If the federal government was not empowered to enforce the Fugitive Slave Clause, how and by whom would the clause be enforced?

Again, it seems to me that Justice Smith’s answer comes up short. “[R]epudiat[ing] the degrading insinuation that state officers are less faithful to the constitution, than federal officers,” he simply affirmed that “every state officer, executive, legislative and judicial, who takes an oath to support the constitution of the United States, is bound” to enforce it. But what if they do not?

“The simple answer is, that when the state and federal officers become so regardless of their oaths and obligations as either question implies, anarchy or revolution, or both, must supervene, for the government would be a willful departure from the fundamental law of its organization, and the people would be absolved from their allegiance to it.”

To counterbalance this surprising and alarming conclusion, Justice Smith sought to demonstrate that the consequences of the alternative – granting federal power over matters covered by Article IV -- would be even more catastrophic:

“What would be thought . . . should congress pass a law to carry into effect that clause of the fourth article in regard to citizenship [i.e., the Privileges and Immunities Clause]? and declare pains and penalties against any state functionary who should fail to comply? What would be thought if congress should declare it a penitentiary offense, for any executive of a state to refuse to surrender a fugitive from justice? What state would submit to see its chief magistrate dragged before the federal tribunals, on charge of infraction of such a law . . .? And yet the power to legislate at all upon the subject, is assuming supreme and unlimited power over the whole matter. There is no middle ground.”

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