An Effective Method to Restore Due Process

Tenth Amendment Center: Constitutional Conversation

In 1850, when President Millard Fillmore signed the second “Fugitive Slave Act,” due process was under serious attack by the federal government.

The law compelled people of all states to “assist” federal marshals and their deputies with the apprehension of suspected runaway slaves. It brought all trials involving alleged fugitive slaves under federal jurisdiction. It included large fines for anyone who aided a slave in their escape, even by simply giving them food or shelter.

On top of it, bounties were paid to commissioners in fugitive slave cases. $10 was paid if a person was sent back to slavery, and $5 if the person was allowed freedom. The federal government was paying people to capture other people and send them to slavery.

The act also suspended habeas corpus and the right to a trial by jury for alleged “slaves,” and made their testimony inadmissible in court. The written testimony of the supposed slave master, on the other hand, which could be presented to the court by slave hunters, was given preferential treatment.

STATE RESISTANCE

In response, Northern States intensified efforts to pass what were known as “personal liberty laws.” These had already been growing over time in response to the original Fugitive Slave Act years earlier.

Vermont passed a “Habeas Corpus Law,” requiring state judicial and law enforcement officials to actually help captured fugitive slaves there. Massachusetts took a really strong stand – and passed a law that provided for kidnapping charges to anyone trying to use these “indefinite detention” provisions of the fugitive slave act.

No federal agent was charged with kidnapping in Massachusetts, though. But, this was only because no escapee was ever captured for return after the law was passed. The state response was working.

In fact, Northern states were so successful overall that when South Carolina seceded ten years later the people there named this as one of their primary reasons for leaving the Union. From their publicly-released “Declaration of Causes,” was this:

“The States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, have enacted laws which either nullify the [Fugitive Slave Acts] or render useless any attempt to execute them…”

NDAA: THE ROAD BACKWARDS

In 1942, FDR signed an executive order which authorized the creation of military zones “from which any or all persons may be excluded.”

This led to the roundup of around 110,000 Japanese-Americans and Japanese citizens living here in California and along the West Coast. Without due process to assist them, these people were relocated and sent to internment camps. Many more were classified as “enemy aliens” and subjected to increased restrictions.

Like the Fugitive Slave Acts and Japanese mass internment, the federal government has again taken new powers never intended under the Constitution. Under sections 1021 and 1022 of the NDAA, the feds again claim the power to classify people in such a way that they no longer have rights.

President Obama and Congress have dropped the terms “fugitive slave” and “enemy alien.” Instead, they use “suspected terrorist” as a way to eliminate due process these days.

RESISTANCE TODAY

Today, in the spirit of the 19th century Personal Liberty Laws, states and local communities around the country are taking action against NDAA detention powers. Virginia recently became the first state in the country to pass a law refusing compliance with or assistance to federal agents carrying out detentions without due process against citizens of that state. Arizona’s legislature just passed a similar bill. And a number of other states are working on the same.

But, it’s not just states. More than ten local communities are on board too. For example, up north in Fairfax, CA, they passed legislation which says that they will:

“Instruct all our Town of Fairfax agencies to decline requests by federal agencies acting under detention powers granted by the NDAA that could infringe upon residents’ freedom of speech, religion, assembly, privacy, or rights to counsel.”

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JUST THE BEGINNING

When Northern States protected habeas corpus against federal encroachments in the 19th century, they were doing their duty to protect liberty and the Constitution. Today, states and local communities are doing the same.

They can and should serve as a powerful check on federal power. In fact, the framers counted on it. It’s all about local actions. As Democrats and Republicans continue to work together in DC to take away our rights, it’s our local communities who must and will rise up to save them.

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