Portside

The Fugitive Slave Act was part of the Compromise of 1850, which was supposed to stave off civil war. The act required that slaves be returned to their owners, even if they had escaped to a free state. The act also made the federal government responsible for tracking down, returning, and punishing escaped slaves.

In the Dred Scott case of 1857, Scott and his wife Harriet sued for their freedom, on the grounds that they had lived for four years in Illinois and the Wisconsin Territory, where slaveholders had no rights. But the Supreme Court, in Dred Scott v. Sandford, held that no person of African ancestry had citizenship rights, and thus had no standing to sue. It took the three Civil War amendments to nullify the Dred Scott decision and grant African Americans full citizenship.

Does all this sound familiar, with more recent echoes? It sure feels increasingly like the 1850s, with slave states trying to get free states to do their bidding and enlisting the federal government to help.

Last month, the Republican attorneys general of 19 states sent a letter to President Biden’s HHS Secretary, Xavier Becerra, demanding access to the medical records of people who cross state lines to seek abortions or gender-affirming care. The Biden administration is not cooperating, but the next step will be litigation. Given the Supreme Court’s string of decisions depriving women and people from LGBTQ communities of their rights, this Court could follow in the footsteps of the 1857 Court upholding the Fugitive Slave Act and command free states and the federal government to cooperate.

Meanwhile, taking advantage of the Court’s other recent ruling banning race-conscious affirmative action programs, Edward Blum, the plaintiff in that case, has sent a letter to 150 selective colleges and universities warning them not to attempt to achieve diversity goals using proxies for race such as economic factors and adversity. If they do, Blum has written, more litigation will follow.

Litigation allows for discovery. Plaintiffs in a new suit could demand emails and notes of discussion of applicants, which would clearly reveal attempted work-arounds. Liberals who have comforted themselves with the idea that economic diversity is an excellent second-best and valid in its own right could be stymied again.

In the 1850s, abolitionists responded to escalating efforts to extend slavery to free states, aided by corrupted courts, with acts of civil disobedience. Under the laws of some states today, a woman who crosses state lines to seek an abortion is committing civil disobedience—and remember, the Court in the 2022 Dobbs case did not prohibit abortion nationally but left it up to the states.

Soon a university that tests the limits of the Supreme Court’s affirmative action ruling will also be committing a kind of civil disobedience. And let’s recall, it took decades of civil disobedience against unjust laws, led by heroes with names like Rosa Parks and Martin Luther King Jr., to reverse those laws.

The deepening crisis of the 1850s ended with the election of Lincoln and the Civil War. Today’s overreach by slave states and far-right courts does feel like the run-up to a civil war.

The denouement of the crisis of the 2020s will not be a full-on war. But until either the Democrats gradually win legislative majorities and appoint new justices to protect rights, or Republicans win national power and snuff out democracy, we are in for prolonged trench warfare.