The Constitution, Race, and Renewed Relevance of Original Intent: ...

Congress initially accounted for the fugitive-slave problem by passing the Fugitive Slave Act of 1793. The act (1) imposed on a state the duty to return fugitives upon official demand and (2) enabled a slave owner to cross state lines, apprehend the alleged fugitive, and, upon proof of ownership to a judicial officer, reclaim and remove the person.¹⁵ Although the act itself provided no incidents of due process, such as the right to a hearing, several states enacted laws prohibiting the kidnapping of African Americans, or at least providing opportunities to contest the claims of slave owners or their agents.¹⁶

Fugitive-slave legislation represented an early paradox in the federal system. Slavery had been constitutionally accommodated pursuant to the premise of federal neutrality and individual state determination. Imposition of universal obligations to account for fugitive slaves constituted an early exercise in the expansion of federal power. The constitutional predicate for the policy, as previously noted, was dubious but originally uncontroverted. Reaction to and debate over the fugitive-slave clause and federal legislation, therefore, were effective in illuminating sectional incompatibility and enhancing mutual disaffection.

The fugitive-slave controversy also revealed some significant truths with respect to the North. The variance between the status of slaves in the South and nominally free African Americans in the North was reducible essentially to a difference between full and partial disability. As Chief Justice Taney accurately noted in Dred Scott v. Sandford, presumptions of racial inferiority were pervasive and unqualified by geography.¹⁷ The reality was that Taney’s racist premises were reflected as much by northern customs and attitudes as by southern priorities. Freedom for African Americans was more common in the North than in the South, where it became an increasingly rare phenomenon. African Americans in the South were denied virtually any incident of citizenship and the most basic constitutional protections. By their mere presence, or as a consequence of violating the law, they risked reverting into slavery.