The Fugitive Slave Act of 1850 mandated the seizure and return of Black people who had been enslaved, or were simply suspected of being enslaved, to their so-called masters, even if those Black people made it to a free state. It denied those Black people the opportunity to have a jury trial, and empowered federal marshals to return enslaved people to the South without due process.
The act was a vile repudiation of the very concept of freedom, but its thrust was nothing new. The Fugitive Slave Act of 1850 was not all that different from the Fugitive Slave Act of 1793, which itself merely enforced Article IV, Section 2 of the Constitution. (Yes, the Constitution, that hastily written, overly celebrated, kinda trash American governing document.) The original version of that document explicitly provided for the capture and return of people who had escaped slavery. Here’s that language, if you’re interested: “No Person held to Service or Labour 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 Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” It’s disgusting, isn’t it?
Yes, this country always sanctioned the recapture of enslaved people, but what was new about the monstrous 1850 version was that it punished white people too. Section 7 of the law punished those who “rescue, or attempt to rescue” or “aid, abet, or assist” others trying to rescue enslaved people from bondage. The law called for civil penalties—money—to be paid by the whites who helped escaped slaves. The Confederates literally put the lack of enforcement of the Fugitive Slave Act on their list of casus belli for their insurrection against the American government.
The Fugitive Slave Act was repealed in 1864, and the constitutional language mandating slave recapture was excised with the 13th Amendment’s prohibition on slavery. But now, nearly 160 years later, some Republicans seem eager to bring back these kinds of laws. This time, their goal is not the recapture of enslaved people but the recapture of women.
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Missouri State Representative Mary Elizabeth Coleman has introduced an amendment to the state’s already restrictive abortion bill that would allow citizen bounty hunters to sue abortion providers who help women who escape from Missouri to get health care. The proposed amendment could almost have been ripped right from Section 7 of the Fugitive Slave Act: “it shall be unlawful for any person to perform or induce, or to attempt to perform or induce, an abortion on a resident or citizen of Missouri, or to aid or abet, or attempt to aid or abet, an abortion performed or induced on a resident or citizen of Missouri, regardless of where the abortion is or will be performed.” Mr. Rogers once said, “Look for the helpers,” but Coleman has perverted that to “so we can sue them.”
The Missouri proposal is flatly unconstitutional. Missouri does not have jurisdiction over abortion providers in other states, and stomping its feet and throwing a temper tantrum about abortion providers in other states won’t change the jurisdictional requirements.
That said, Texas’s Senate Bill 8, which allows private citizens to sue abortion providers and touched off the current spate of extrajudicial vigilante bounty hunting laws is also flatly unconstitutional, but the conservative Supreme Court has refused to put a stop to it. At this point, the real definition of “constitutional” is simply “anything five conservatives think will own the libs.” I don’t think the Supreme Court would ultimately uphold Missouri’s Fugitive Women Amendment, but I also don’t expect the court to actually help pregnant people targeted by states.
Still, the potential Supreme Court machinations around this amendment don’t actually matter that much, because the “success” of proposals like this doesn’t hinge on their enforcement. The goal is to strike fear into the hearts of vulnerable people. The 1850 Fugitive Slave Act resulted in relatively few prosecutions of slaves and even fewer prosecutions of white helpers (if any: I’m not a legal historian, but I don’t recall any famous prosecutions of white helpers under this act). Some Northern states even passed laws explicitly repudiating the Fugitive Slave Act or passed so-called “personal liberty” laws that protected those who helped escaping slaves. And yet, the Fugitive Slave Act’s feint at punishing white people still had a massive effect on Black people. It’s among the chief reasons the terminus of the Underground Railroad was not New York or Illinois but Canada, which saw 30,000 to 40,000 formerly enslaved people enter the country between 1850 and 1860.
Back in the present, we can see the terroristic intent of these kinds of laws in a bill that was passed by the Idaho House this week. It’s an anti-trans bill that makes it illegal to provide gender-affirming care to teens in Idaho—much as a number of other states have done. But the Idaho legislature has decided mere bigotry is not enough and has gone for draconian punishments. Idaho makes providing gender-affirming care punishable by a life sentence—and makes it “illegal” to move out of Idaho to receive that care.
Again, the provision is flatly unconstitutional: The right to travel between states has been recognized by the Supreme Court; nobody needs to consult Snake Plissken to escape from freaking Idaho. But the point of this No Escape clause isn’t to enforce it (I promise you, California is not going to extradite a trans teen back to Idaho). The point is to terrorize kids and their loving families. The point is to make them hopeless. It’s to make them feel that, even if they somehow get out, there is no place to go.
The Republicans in Missouri and Idaho who are in favor of these laws are borrowing traces of the sadistic logic and psychological tactics of this country’s enslavers. They’re trying to intimidate and demoralize people, until those people give up on trying to break free.
I’ve already written about what the federal government should do: It must descend on these states with doctors willing to provide medical care. But the rest of us need to act like the abolitionists of old and get the word out. We need to let people who are trapped in these horrible places know that if they are able to make it out, there’s a whole world of people who will help them. And accept them. And shield them from Republicans looking to recapture them.
Elie MystalTwitterElie Mystal is The Nation’s justice correspondent and an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution. He can be followed @ElieNYC.