How Today’s Tensions Mirror Pre-Civil War America

Written By Leeja Miller

Sources:

Transcript:

You’re tuned into Why, America? I’m Leeja Miller. On Monday we discussed the redistricting fight happening in Texas and what gerrymandering means for our elections moving forward. Today we’re discussing that ongoing issue along with states rights generally to protect the people within state lines or go after people outside their borders at a time when fierce partisanship has divided the country to such an extent that many states have directly opposing laws and where the federal government has taken it upon itself to interfere politically with the states that don’t align with the regime’s agenda.

Here’s the latest on the fight in Texas: the democrats in Texas who left the state in order to deny the Texas state house a quorum so they are unable to move forward with voting to approve the new map that gerrymanders Texas to hell and would likely give Republicans 5 more House seats from Texas alone, those Texas state house democrats are still outside of the state of Texas, so the legislature hasn’t moved forward with the vote on the new districts. Texas governor Greg Abott has ordered the civil arrest of those democratic lawmakers and called for them to be removed from office for abandoning their duties. The problem is that those lawmakers are physically in other states like Illinois and New York and therefore Texas’ jurisdiction does not extend there. A Texas cop can’t cross state lines and arrest someone in Illinois. Their arrest warrant was issued in Texas, they cannot extend past Texas state borders. In this case, the arrest warrant was issued by House Speaker Dustin Burrows and under his authority he ordered the sergeant-at-arms of the Texas house and Texas state troopers to track down and apprehend the House members who refused to show up to work and forcibly bring them back to the house chamber. The state lawmakers are not criminally implicated, they have broken no state or federal laws. Abbot and Attorney General Ken Paxton are calling for investigations to see whether the lawmakers broke campaign finance laws or committed fraud by using donations to pay for fees or other expenses caused by their exodus from the state, though it’s unclear whether there is evidence that this happened or whether any of it would be enough to get the FBI involved, which is what Abbott and Paxton, along with Senator John Cornyn are now calling for.

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What we’re seeing in Texas has happened before, in 2003 and 2021, when Texas state house Democrats left the state to deny quorum and civil arrest warrants were issued, but also this tactic has been used in Texas as far back as 1870 to prevent unpopular or controversial legislation. But no serious actions were taken, especially in those more recent instances, to enforce the warrants outside Texas, and requests in 2003 to the Bush administration to help round up absent lawmakers were denied. This time, though, speaker Burrows and state AG Ken Paxton have petitioned the state of Illinois in the 8th judicial circuit court there to enforce the Texas state arrest warrants in Illinois. The 8th judicial circuit is located over 4 hours away from Chicago where the state reps are staying in a county that voted overwhelmingly for Trump in 2024, clearly Paxton picked a Trump-friendly venue even though it would have made more sense to file in Chicago where the legislators are staying. And now US Senator from Texas John Cornyn has announced that he requested assistance from the FBI to enforce these warrants, and, according to him, the FBI has agreed to get involved. But the FBI and the federal government have limited jurisdiction over state affairs, very much on purpose. States rights and all. The constitution is written to protect the power of the states from interference by the federal government in ways that don’t concern federal laws or implicate Congress’ power under the constitution. The constitution grants Congress limited jurisdiction–it lays out explicitly all the things Congress has power over and then says basically everything we didn’t mention here the state is in charge of.

So even though Senator Cornyn said oh yeah I spoke with FBI director Kash Patel and he said the FBI is gonna help, it’s unclear how the FBI would claim they have jurisdiction over this matter that is very clearly just an issue within Texas and should be handled by Texas.

Now under the constitution the states are required to give “full faith and credit” to the laws of the other states, meaning if a divorce decree is issued in Minnesota, it’s valid in Illinois, if a custody agreement is issued in Massachusetts, it’s good in Rhode Island, etc. And states typically will cooperate with extradition coordination for people wanted by the law in other states. However, again, these state legislators have not been accused of committing any crimes, and if they had the state of Texas would have already filed those charges, making extradition requests more valid, but they haven’t. But even that is an issue between states, not involving the federal government unless federal laws are broken or laws in multiple states and across state lines have been broken such that the feds need to get involved. Unlike what the X Files may have you believe, the feds can’t just show up in a state anytime they decide a case sounds interesting. And in this case the feds are being very dodgy about the extent to which they’re helping out, refusing multiple requests for comment from various news agencies.

According to the Center for American Progress, quote “The FBI itself states that it does not take over state investigations but may assist in locating fugitives fleeing justice. Federal law provides that aid in pursuing fugitives applies only to those fleeing to avoid felony prosecution, giving testimony in a criminal case, or facing criminal contempt proceedings before a state agency. The FBI can also serve warrants and seizures for violations of federal law. However, none of these provisions appear to apply to the legislators breaking quorum because they do not appear to have violated any criminal laws—state or federal. Furthermore, the U.S. Constitution and Supreme Court precedent require that if the legislators are apprehended in a different state, with their home state attempting to extradite them, the extraditing state’s governor must agree to return them.”

The issue of what powers states have over people in other states is a central question that has arisen during this second Trump regime on multiple occasions, including related to a doctor located in New York who is accused of sending abortion pills to someone in Texas. She was slapped with a $113,000 default judgement against her. When Texas officials attempted to get New York to enforce the judgment, the court clerk refused, citing a New York state law that protects telemedicine providers from this type of prosecution. Louisiana has also sought to extradite the same doctor for providing abortion pills via telemedicine and, again, New York state protected her.

There was a time in our history when similar issues of state’s rights, when extradition applies, when the federal government should get involved, and when states have to respect other states laws, were prominent in the national debate. In the years leading up to the Civil War, questions over whether free states had to respect the laws of slave states, whether slave states could enter free states to capture runaways and fugitives, and whether a person remained free when leaving a free state and entering a slave state, led to fierce national debate that ultimately spurred civil war. I think an examination of that history is worthwhile to inform our interpretation of the ongoing debate in the present day, because this is an issue that impacts not only the legislators from Texas but also abortion access, access to civil rights, voting rights, and even citizenship status as the regime attempts to enforce its reinterpretation of the 14th Amendment to say that birthright citizenship doesn’t exist and certain citizens are no longer citizens, in a haphazard patchwork way across the states, where some people will variably be considered a citizen in some states and then a non-citizen when they cross into other states.

Okay let’s start with the Constitution. At the time it was written, the constitution included many compromises meant to ensure that the slaveholding and non-slaveholding states could come together to form one union. This included the 3/5ths compromise, which allowed southern states to count 3/5ths of each enslaved person for purposes of apportioning representatives. It included a clause that blocked Congress from outlawing the transatlantic slave trade for 20 years. And it included the fugitive slave clause. That clause is found in Article 4, section 2. That section also informs when the feds can get involved in state criminal matters. That clause, which is still relevant today, reads “A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.”

After that clause was added to the constitution, the delegates from South Carolina moved to have the same clause but applied to fugitive slaves, who they wanted to be required to be quote “delivered up like criminals.” According to the annotated constitution on Congress’ website, which hasn’t been messed with under the Trump regime, I checked archived versions at least of this section of the annotations to make sure, if you didn’t know it was discovered that entire sections and clauses of the constitution were deleted earlier this week from Congress’ website. This was due allegedly to a “coding error” but the sections in question included the 3/5ths compromise at a time of intense national debate over apportionment of Representatives, which is fishy as fuck. The sections have since been restored. Anyway, all that to say this annotated section of the constitution I’m about to quote from on the Congressional website is still the same as it was before the Trump regime took over. ANYWAY, according to that, quote “Under the Supreme Court’s interpretation of the Fugitive Slave Clause, the owner of an enslaved person had the same right to seize and repossess him in another state as the local laws of his own state granted to him, and state laws that penalized such a seizure were unconstitutional.”

After the 3/5ths compromise was made at the constitutional convention, James Madison wrote quote “It seems now to be pretty well understood that the real difference of interests lies not between the large and small but between the northern and southern states. The institution of slavery and its consequences form the line of discrimination.” Even then, the framers understood that these issues between states over their rights to own humans, and what happens when those humans attempt to flee, was a line in the sand. One that came to a head 80 years later. One that we’re continuing to see ripple effects of nearly 250 years later. Whether and how liberal states in the north and conservative states in the south respect each other's laws is a debate as old as the founding, and it now threatens to once again divide us across fundamental lines.

Back then, a pivotal Supreme Court case called Prigg v. Pennsylvania held that Congress had the power to regulate fugitive slaves under the Constitution, but it limited Congress’ power to force state officers to return fugitives to their supposed masters. That case led a lot of free states to refuse to participate in the process of capturing and returning fugitive slaves. And so the federal government intervened in 1850 with the Fugitive Slave Act of 1850, designed to enforce the fugitive slave clause. It guaranteed that the feds would intervene in helping enslavers recapture runaways, in going into free states and forcibly taking people that had been deemed fugitive slaves. The law imposed high penalties for anyone caught aiding fugitive slaves, up to 6 months in jail and a $1000 fine, equivalent to about $40,000 today. It also put in place a process that removed the fugitive slave adjudication from the courts and instead dedicated federal commissioners to hear cases that required very little evidence from slaveholders in order to capture fugitives and barred the fugitives themselves from testifying on their own behalf. Those commissioners were paid based on their determination in each case: $5 if they decided not to return the fugitive to the person who claimed to own them, and $10 if they did. This led to abuses of the law wherein free men and women were accused of being fugitive slaves, unable to defend themselves, and abducted into slavery. There were also many cases of free men from the north, working on ships that docked in the south, being abducted and sold into slavery on accusations of being fugitive slaves, with very little recourse to prove otherwise.

The law proved incredibly controversial, with northern states attempting to pass their own laws to nullify the act and abolitionists doubling down on assisting runaways. The underground railroad reached its peak in the 1850s in the years after the act. Antislavery activists routinely attacked federal courthouses and jails, forcibly freeing fugitives before they could be sent back south. This was so widespread that in certain northern states the fugitive slave act was virtually unenforceable, and by 1860 only 330 enslaved people had been successfully returned south, though it is impossible to know how many total people, born into freedom throughout the years, were kidnapped and forcibly entered into slavery across the country and the territories.

An incident in Ohio illustrates the tensions between the federal government and the states, and between northern and southern states. As described in the Library of Congress blog, again written before the current regime took over, quote “What was later referred to as the Oberlin-Wellington Rescue began when John Price, enslaved to Kentucky slaveholder John G. Bacon, escaped to Oberlin, Ohio in 1856, which the New York Herald described as “a well known anti-slavery town.” For two years, Price found refuge in Oberlin until he was arrested on September 13, 1858, by a federal marshal authorized by the 1850 Act to capture Price and return him to slavery. After being captured, Price was taken by train south of Oberlin to Wellington, Ohio, where the marshal encamped in a local hotel before planning to enter Kentucky.

Abolitionists and other antislavery advocates in Oberlin rallied to Price’s defense. After hearing that “some one had been kidnapped,” abolitionists in the town resolved to journey to Wellington and secure his freedom. “We will have the man,” said one person defiantly, “law or no law.” After reaching the hotel in Wellington, the antislavery crowd attempted to peacefully negotiate Price’s return before resorting to force. The marshal inside the hotel refused their pleas. “Just then there was a rush—the window was broke in,” and several of the men swept into the room where Price was being held, helping him escape and return to Oberlin. Once in Oberlin, those involved in his rescue acted quickly to secure Price’s escape to Canada, where he successfully found freedom.

… Of the people involved with Price’s escape, 37 were indicted by a federal grand jury for having violated the Fugitive Slave Act of 1850. Authorities in Ohio, sympathetic to the rescuers and opposed to many provisions of the Act, reacted by arresting the federal marshal and other officers who captured Price, charging them with kidnapping. By April of 1859, federal and state authorities negotiated the release of both parties, with only two antislavery men being convicted and the remaining 35 released without charges. In return, Ohio authorities dropped the charges of kidnapping. … At once commended by abolitionists and condemned by enslavers, the Oberlin-Wellington Rescue exposed the irreconcilable divisions between North and South that, within three years, erupted into civil war.”

As Time described at the 165 year anniversary of the passage of the Fugitive Slave Act, quote “Surely one of the most critically misguided pieces of legislation in U.S. history, it proved strikingly cruel, even for a pro-slavery measure. It forced the federal government to grossly overstep its bounds in defense of slavery at a time when anti-slavery sentiment was clearly on the rise, sparking outrage and defiance in the North, and, in turn, further deepening southerners’ suspicions that their rights could no longer be protected within the Union.”

Okay so why do recent events have me thinking more and more about this history in the lead up to the civil war? Because we’re seeing very similar tensions arise now as we did then. Tensions between a federal government, intent on politicizing everything in order to further its own causes that half the country, at least, disagrees with, imposing its will over the objections of states, whether it’s sending FBI agents after Texas state representatives or federalizing the California national guard, or targeting so-called sanctuary cities with punishment for getting in the way of its agenda to infringe the rights of a minority population. We’re also seeing tensions between states, with northern states attempting to protect the civil rights of marginalized communities, like trans teenagers, undocumented immigrants, access to abortion, access to voting, while southern states attempt to strip their citizens of those rights and punish anyone from northern states who tries to assist their citizens in obtaining the rights that have been stripped away.

The difference today as that there isn’t one central rallying cry to organize around the way there was for abolitionists in the pre-civil war era who were joined by more centrists and even racists by the end of the 1850s who thought well listen we’re not equal but slavery is still abhorrent. The federal government’s actions leading up to the Civil War only helped grow the anti-slavery coalition. Today, a number of issues divide us, even within the left, and I don’t see one issue being enough to coalesce around today like there was in the 1850s. So this episode is not meant to fearmonger you into believing Civil War is imminent. Not in the traditional sense. But these parallels, along with the increase we’re seeing in political violence, in a willingness to go after political rivals from the president, who has opened investigations into Obama and his officials to distract from his own alleged misdeeds related to Russian collusion in 2016, into the Clintons, in order to distract from his own alleged misdeeds related to Epstein, and across the federal government, which has shown a voracious willingness to arrest elected officials, judges and more, on down to everyday citizens who buy guns and murder elected officials, to the open threats of violence against Republicans who don’t toe the Trumpian line, and more. There is a rash of political violence that has been growing in this country since Trump’s first term, egged on by Trump himself, that combined with these tensions between federal and state powers, and between north and south, create some very clear parallels between now and pre-civil war that can’t be ignored. What those tensions will lead to is impossible to predict–anyone declaring that civil war is imminent is full of shit–but there doesn’t appear to be an end in sight.

The Trump administration is continuing to push for redistricting in Texas to help solidify its majority in the House, and has doubled down, pushing for redistricting in a number of states. JD Vance was just in Indiana pushing the issue, and similar pressure has been put on Ohio, Florida, and other states that have promised to do everything in their power to increase the number of Republican held districts. And in the face of this unrelenting partisan battle for house seats, Democrats are left with little option other than to take the high road and do nothing or fight back in equally partisan fashion, which appears to be what they are doing, with governors from California, New York, and Illinois promising to do everything in their power to increase democrat-held districts in their states. Partisan tensions have escalated to such a fever pitch in this country, with Trump willing to push the envelope into ever more dramatic and untested territory that it is forcing Democrats hands into equally partisan tactics. This level of division does nothing other than erode trust in the stability of our institutions, of our government as a whole, across the board for all citizens. When the citizens no longer trust the government to operate in their favor, to operate in a trustworthy way, to function at all, they become susceptible to promises from populist leaders who also engage in the corruption but who do so to fight for them, allegedly. The result of all of this is instability more than anything else, the creation of a system where quid pro quo is rampant, where monied interests can play off the partisanship to the point where the only people who benefit are the billionaires playing god. That’s been happening and it will continue to happen.

What do we do? Well historians and academics argue that when the people become apathetic and decide it’s a lost cause, that is when we cross the threshold into the place of no return. So I would urge you to find the things you can continue to have faith in, whether that’s your own neighborhood, your small community, your city council, where you feel that there are is still good happening, where people still care about the wellbeing of others and doing the right thing, in order to keep your sanity through this. It is easy to feel really powerless, I know I do, but maintaining hope and showing up everyday in our own communities is something we do have control over.

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And if you liked this episode, you’ll like the one from Wednesday about whether or not it is safe to fly in America!

Leeja Miller
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