Abstract
Excerpted From: Michael J. Zydney Mannheimer, Fugitives from Slavery and the Lost History of the Fourth Amendment, 25 University of Pennsylvania Journal of Constitutional Law 527 (May, 2023) (200 Footnotes) (Full Document)
Fourth Amendment scholarship almost universally ignores the first seventy-five years of the Amendment's existence. Those with an historical bent typically examine the roots of the Amendment in the 1760s, the adoption of precursors to the Amendment in state constitutions after 1776, the ratification debates and demands by Anti-Federalists for a Bill of Rights in 1787-88, and the ultimate adoption of the Amendment with the rest of the Bill in 1791.
Then, it would seem, the Fourth Amendment fell silent for at least seventy-five years. It came up again only in Congressional debates over the Fourteenth Amendment in 1866, which is important for those examining whether that Amendment is properly understood as incorporating the Bill of Rights. For those looking to how the Fourth Amendment applies, one must look another dozen years down the road for a Supreme Court case, Ex parte Jackson, where the Court wrote in dicta that federal postal inspectors would violate the Amendment if they were to open mail and read its contents. And it would not be until United States v. Boyd in 1886, nearly a century after ratification, that the Court would offer some of the broad language on the Fourth Amendment that set the stage for its development in the twentieth century.
But it would be a mistake to think that the Fourth Amendment simply lay dormant during the entire antebellum period. Such a view betrays both the academy's juriscentric bias, which places the obligation to interpret the Constitution exclusively in the hands of judges, and its hyper-focus on the federal government to the exclusion of goings on at the state level. The Fourth Amendment was alive and well during this period in the hands of state legislators, litigants in state courts, and the general public of free States in their struggle to protect free persons of color from being kidnapped into slavery. Federal criminal justice machinery was tiny during this period, excise taxes were virtually non-existent, and inspection of ships for purposes of collecting customs duties was thought outside the purview of the Fourth Amendment. The area where federal law was most intimately involved in searches and seizures was in supporting the seizures in free States of persons of color alleged to have escaped slavery. It is here that we see Fourth Amendment arguments invoked by northern lawyers in state courts representing alleged fugitives from slavery, deployed by Northern state legislators to justify special state “personal liberty laws,” and made by ordinary people in support of the plight of persons of color dragged into slavery.
Because these seizures were made by private individuals, our modern notion of a “state action” requirement suggests that the Fourth Amendment was irrelevant in these cases. But the federal Fugitive Slave Acts of 1793 and 1850, which spelled out the process by which private persons were authorized to capture alleged fugitives from slavery and bring them back to the slave States, can be thought to have clothed these private individuals with the authority of federal officers. More importantly, the Fourth Amendment argument is susceptible to two different interpretations. Advocates for alleged fugitives from slavery may have been arguing that the federal acts contravened general, nationwide Fourth Amendment standards. Alternatively, or in addition, they may have been arguing that the acts unconstitutionally displaced state procedures for recapture of the alleged escapees from slavery. This latter interpretation makes more sense given that even when a private individual exercised the common-law “right of recaption,” i.e., self-help outside the auspices of the federal acts, constitutional arguments were deployed to suggest that the Fourth Amendment preserved the authority of each State to modify the common-law right of recaption. This strongly suggests that the Fourth Amendment argument was focused more on federalism and less on rights.
Even when the issue was raised, few courts addressed the potential Fourth Amendment problem with the seizure of fugitives from slavery. The one court that addressed the issue head on, Commonwealth v. Griffith, an 1823 Massachusetts case, rejected the claim that the Amendment protected enslaved persons, and the person of color seized in that case conceded having been enslaved. However, a close reading of Griffith suggests that the court there actually accepted the Fourth Amendment's preservation of state regulation of seizures as applied to free persons. By contrast, in the infamous case of Prigg v. Pennsylvania in 1842, in which a coalition of Southern slavocrats and Northern ultra-nationalists on the U.S. Supreme Court broadly rejected constitutional challenges to the Fugitive Slave Act of 1793, and struck down state attempts to regulate the rendition of fugitives from slavery, the Court utterly ignored the Fourth Amendment argument.
This Article is the first to excavate the lost history of the Fourth Amendment as an ultimately unsuccessful tool to protect free persons of color from the Southern slave catcher. It argues that the Fourth Amendment arguments made on their behalf posited the Amendment as a reservation of state control over seizures of persons in each respective State, which were to be regulated by the civil and criminal law of each State. Part I briefly discusses the inattention of Fourth Amendment scholars to the first seventy-five years of the Amendment's history. Part II demonstrates the mobilization of the Amendment during the antebellum period by state legislators, litigants, and the general public in the North on behalf of persons of color alleged to be fugitives from slavery. It disinters a lost understanding of the Fourth Amendment as a reservation of state control over searches and seizures within each respective State through state civil and criminal law. Finally, it demonstrates how the Prigg Court dealt an ultimately mortal blow to this view of the Fourth Amendment when the Court simply ignored the argument and broadly rejected the idea of state regulation of seizures of alleged fugitives from slavery.
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Our obsession with judicial supremacy in constitutional interpretation would lead us to assume that the Fourth Amendment was essentially irrelevant in the antebellum period. After all, in neither Prigg nor Jones nor Ableman did the U.S. Supreme Court so much as cite the Amendment. But broader views of constitutionalism that posit the Constitution as belonging to the People, not the judges, show this assumption to be faulty. State legislators, lawyers, and private citizens in the antebellum North carried on the notion from the founding-era that the States were the primary guarantors of civil rights. They operationalized this view against the Slave Power in arguing that the Constitution preserved the authority of the States to regulate seizures that occurred within their borders, not only rendering the federal fugitive slave laws unconstitutional, but also providing constitutional support for the state personal liberty laws. On their view, the Fugitive Slave Clause impinged only narrowly on state sovereignty, forbidding the States only from making enslaved people free. To the extent it purported to go further and preempt state regulation of seizures, it was almost immediately amended by the Bill of Rights. Proponents of this view cited the Fourth Amendment, along with the Fifth, Seventh, and Tenth, in support of both of these intertwined arguments: that the federal laws were unconstitutional and the state laws constitutional.
William H. Seward, former New York Governor and future U.S. Secretary of State, in summing up his argument for the defendant in the Supreme Court in Jones v. Van Zandt, hearkened back to the New York Anti-Federalists, whose reluctant acquiescence to ratification of the Constitution in 1788 in exchange for the promise of a bill of rights gave us the Nation we know today:
When the “Amendments,” which have been cited, were so strenuously insisted upon by the State of New-York, as a condition of accepting the Constitution, the alarms and fears, out of which they arose, were thought by many, groundless and absurd. It is a melancholy reflection that [the Amendments] have proved inoperative. Still further and stronger guaranties of personal rights will be necessary, if the decision here be adverse to the Defendant.
Of course, the decisions in Prigg, Jones, and Ableman were all adverse to the alleged fugitives in those cases. They were adverse to the cause of freedom. And they were adverse to our federal structure. Faced with the continual threat of the breakup of the Union over slavery, the Supreme Court, in a nationalistic fervor, set forth a vision of constitutional centralization on behalf of the Slave Power in hopes of saving the Union. That vision brushed aside objections based on the Fourth Amendment and other provisions of the Bill of Rights. Lost in the skirmish was a state-centered, federalism-oriented approach to the Bill, whereby the Fourth Amendment stood for the preservation of state control over searches and seizures.
As we all know, the Supreme Court's appeasement of the Slave Power in the 1840s and 1850s only delayed the inevitable. The 1860s would bring not only a Civil War that destroyed nearly three-quarters of a million American lives, but also perhaps the most dramatic changes in our legal and political system in any decade in American history. In 1860, people of color were still legally enslaved in over a dozen States. By 1870, they were not only emancipated but-- at least in theory--guaranteed full civil and political rights by the Constitution, including the right to vote.
As Seward predicted in the Jones case, “further and stronger guaranties of personal rights [were] necessary,” but not in the way Seward foresaw. He was speaking of personal rights as against a federal government in league with the Slave Power. The new rights that would be enshrined in the Constitution in the bloody wake of the Civil War would protect Americans from their own States. Even then, those who had legislated, litigated, and otherwise fought for the rights of alleged fugitives from slavery did not forget that federalism was their ally, not their foe, in that crusade. It may come as a shock to those raised in the shadow of Jim Crow to hear radical abolitionist Wendell Phillips proclaim, barely a month after Lincoln's assassination no less: “'I love States Rights; that doctrine is the corner-stone of individual liberty.”’
But in translating the protections of the Fourth Amendment from a right against the federal government into a right against the States, its original federalism orientation--as a preservation of the States' authority to regulate searches and seizures within their respective borders--has been lost. By unearthing and dusting off the lost history of the Fourth Amendment, perhaps we can once again think about the Amendment as being, at least in part, about federalism.
Michael J. Zydney Mannheimer. It is not without some reluctance that I use the term “fugitive from slavery.” On the one hand, it is more precise than the conventional term “fugitive slave,” which emphasized the enslaved person's status as a slave rather than their humanity. On the other hand, the word “fugitive” carries a connotation that the person seeking freedom is doing so wrongfully, as one would call a duly convicted escaped prisoner a “fugitive from justice.” I considered “escapee from slavery” but found it too jarring. Rebecca Zietlow has used the term “freedom seeker,” a term I find too broad (and Zietlow also uses “fugitive from slavery”). Rebecca E. Zietlow, Freedom Seekers: The Transgressive Constitutionalism of Fugitives from Slavery, 97 Notre Dame L. Rev. 1375, 1377-78 n.7 (2002). However, I decided that “fugitive from slavery” most accurately reflects the extraordinary paradox of American slavery: a crime against humanity that was legal for over two centuries in some parts of the country.
Professor of Law, Salmon P. Chase College of Law, Northern Kentucky University.
