Trump’s Deportation Frenzy Echoes the Fugitive Slave Hunts of the 1850s

The first five months of Donald Trump’s administration have flashed by like one of those educational time-lapse films that show the growth of a cactus in 30 seconds. Trump’s experiment in rapid national disassembly echoes America’s near-death experiment in the years before the Civil War. In the past few days, we have passed what might be called the Fugitive Slave Act of 1850 mark.

The struggle in the 1850s arose out of the federal government’s determination to return Black Americans to slavery even after they had escaped to the free North. What is happening on the streets of American cities—and most particularly, now, on the streets of Los Angeles—carries uncanny echoes of that decade-long battle, which ended in secession and Civil War.

The current struggle may not end well either. Unless our political system slows the administration’s persistent sabotage of American institutions, even grimmer landmarks lie ahead.

The Fugitive Slave Act controversy was, at bottom, a battle over slavery. But like today’s fight over immigration enforcement, it took the form of a dispute about constitutional rights and civil-court jurisdiction—and beneath it, then as now, about citizenship, about who belonged to the national community and who was without rights. Its roots lay in the bargain between South and North that made the Constitution possible (the agreement that William Lloyd Garrison, the abolitionist, later called “a covenant with death and an agreement with hell”). Article IV, Section 2, Clause 3 required that “No person held to service or labour”—a euphemism for slavery—” in one state” could change their status by escaping to another state; escaped slaves were to be “delivered up on claim of the party to whom such Service or labour may be due.” It was an essential guarantee for enslavers and what came to be known as Slave States, but it left questions, which became bitter disagreements as the Northern states gradually abolished slavery, and Northern people came to fear and despise the South’s “peculiar institution.” Who was responsible for “delivering” escaped slaves? What were the constitutional obligations of a free state where an escapee found refuge? How could a slave “owner” go into a state where slavery had no legal existence and establish that “service or labour” was “due”?

Under the Fugitive Slave Act of 1793, an enslaver who tracked down an escaped slave could—often assisted by bounty hunters—seize the escapee and drag them before any judge or magistrate. If they provided evidence of “ownership,” the judge was to issue a warrant to return the slave to the place of bondage. But as the 18th Century wore into the 19th, Northern revulsion at slavery and the brutal tactics of slave catchers produced a reaction against Free State involvement in slave rendition. Some states passed “personal liberty laws,” which forbade state officials to aid in returning alleged slaves to bondage and guaranteed anyone seized as a fugitive slave would be entitled to habeas corpus and a jury trial to establish their legal status. The pro-slavery Supreme Court struck down these laws. Still, resistance persisted. The South, by 1850, threatened secession if it did not get effectual guarantees that fugitives would be returned without a lot of messy rights or complicated procedures.

The result was the so-called Compromise of 1850, which included an even more draconian Fugitive Slave Act. It set up a parallel federal court system of commissioners to empower slave catchers to take alleged fugitives south. (The commissioners received $10 for every rendition they approved but only $5 for cases in which they ruled for the alleged slave). Accused fugitives would have no access to habeas corpus and no right to trial by jury. Resistance to slave rendition by anyone was made a federal crime; slave catchers were empowered to conscript civilians on the spot as slave-catchers.

So ruthless was the act that historians agree, hundreds or even thousands of those “returned” to their “masters” after its passage had never actually been legally enslaved. (See “12 Years a Slave.”) So brutal and lawless were the slave catchers operating that widespread repugnance turned to active resistance in the North. In Boston, Milwaukee, and other cities, residents swarmed the courthouses and jails where alleged fugitive slaves were being held and sometimes freed them by force. Federal authorities prosecuted Northern resisters; they carried the case against Wisconsin anti-slavery editor Sherman Booth to the Supreme Court. The federal government won, but the process took four years because the Wisconsin state court, outraged by the federal overreach, refused to send the case record for nearly four years.

Consider the parallels: the U.S. immigration system has its own set of courts, its own law-enforcement branch (20,000 sworn agents strong), and its own set of prisons (Northern slave kidnappers depended on private “slave jails” to hold their prey while awaiting transport South). Federal pressure on state and local officials was intense; today, Homeland Security has begun to arrest and prosecute a local official (Newark, New Jersey, Mayor Ras Baraka), Judges Hannah Dugan of Wisconsin and Shelley Joseph of Massachusetts, David Huerta of the Service Employees International Union, and even a member of Congress, Representative LaMonica McIver, a New Jersey Democrat. “Border Czar” Tom Homan and his boss, the president, threatened to arrest Los Angeles Mayor Karen Bass and California Governor Gavin Newsom.

Over the weekend, crowds in Los Angeles took to the streets to protest the increasingly aggressive tactics employed by ICE as it tries to meet the immigrant-arrest quotas set by the White House. These arrests—often of immigrants who have committed no crimes beyond their being on U.S. soil, arrests of legal tourists, and even arrests of American-born American citizens—have outraged many Americans and have placed state and local officials in an almost impossible position. Simply put, millions of Americans (not entirely living in blue states) find the brutal, sloppy, authoritarian tactics employed by masked agents who often refuse to identify themselves repugnant not only in their brutality but in their contempt for the very nature of the American Union.

That battle has escalated from a law-enforcement problem to a military one, with the administration’s release of a presidential memorandum alleging that “protests or acts of violence directly inhibit the execution of the laws [and] constitute a form of rebellion against the authority of the Government of the United States.” As of Monday, 2,000 National Guard troops, called to service under federal command, are on the streets of Los Angeles to “temporarily protect ICE and other United States Government personnel who are performing Federal functions.” So are 700 active-duty Marines, in a stunning violation of law and custom. Another 2,000 Guard members, again under federal command, are on their way.

First, and most obviously, this “rebellion” is not occurring. Protests—and even non-violent obstruction—to challenge government policy are neither rebellion nor insurrection; it is part of a venerable custom of protest—of “the people out of doors”—that has been part of America’s fabric since the nation was born. Rebellion is an organized effort to destroy or displace government authority; insurrection is organized violence that seeks to destroy the government. (At the most obvious level, a president who pardoned those who violently attacked the U.S. Capitol has no standing to proclaim as rebels Americans who merely protest police-state-style bullying on city streets.) Trump claims, “the Federal Government will step in and solve the problem, RIOTS & LOOTERS, the way it should be solved!!!” But, as reports from California and statements by state officials make clear, there has been no rebellion on Los Angeles streets, and there is precious little violence. What violence and destruction of property there is, the Los Angeles Police Department insists, can be handled by them. The city’s force has far more experience dealing with protests and civil disturbances than the young Marines shipped out of Twentynine Palms. There is no need for any militarized response.

By bringing in federal troops, we are moving out of the realm of political theater, and it could all too easily escalate into a bloody grand Guignol horror show. Trump hopes for violence: he has deliberately and needlessly provoked a crisis, perhaps with the hope of using it to justify police-state tactics.

The story of the 1850 act contains many lessons about American politics. Most importantly, once the federal government undertakes to treat a part of the population without rights, its demands will inevitably escalate. During the antebellum era, what Americans called the Slave Power demanded draconian fugitive slave laws; it demanded slave access to the territories; it demanded that new states be open to slavers and their “property”; they demanded the reopening of the African slave trade, which had been banned in 1808; they demanded U.S. annexation of Cuba, as a potential domestic supplier of slaves. By 1858, Illinois Senator Stephen A. Douglas, a Democrat and a staunch ally of slavery, was proposing a federal “sedition act” to outlaw any criticism of slavery, North or South.

Can a nation committed to human equality treat human beings like chattel? “A house divided against itself cannot stand,” Abraham Lincoln famously said in 1858, “I believe this government cannot endure permanently half slave and half free. I do not expect the Union to be dissolved—I do not expect the house to fall—but I expect it to cease to be divided. It will become all one thing or all the other.”

The federal government is now committed to treating immigrants almost precisely as the antebellum South treated slaves. They are to have fewer rights than others; to their jailers, they are not even truly “persons”; they need not receive due process, or indeed any process, before being detained indefinitely or even deported to countries they have never seen. And under the Trump executive order on birthright citizenship, this subordinate status is to be permanent and hereditary—passed down, the way slave status was, from parent to child.

Truly, this house cannot stand. These conflicts will recur. They will grow more, not less, corrosive to a free, democratic republic. Americans—red or blue—are not accustomed to heel-clicking compliance to the orders of some jack-in-office with a Sharpie.

We have passed 1850; other landmarks loom ahead—guerrilla warfare within and between states, as in “Bleeding Kansas”; violence in the halls of Congress, as in the brutal caning of Senator Charles Sumner, a Massachusetts Republican, by Representative Preston Brooks of South Carolina; curtailment of freedom of speech and assembly directed by the xenophobic bullies weaponizing the federal government.

And behind those landmarks looms an all-but-forgotten specter—a dim, pentagonal rockpile once called Fort Sumter.

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