The Fugitive Slave Clause, State Action, and Congressional Power

Here are two related thoughts about the Fugitive Slave Clause.

State Action: It is often said that the Constitution only imposes obligations on government officials.  While that may be generally true, it is not clear that it is entirely true.  One famous example is the 13th Amendment, which simply prohibits slavery, rather than prohibiting the federal government or the states from imposing slavery. (“Neither slavery nor involuntary servitude . . . shall exist within the United States, or any place subject to their jurisdiction.”)

It is often argued that the 13th thus prohibits private persons from participating in slave relations.  While this is certainly a plausible interpretation of the Amendment, I genuinely don’t know if it is correct.

The other day, however, I came upon a couple of other clauses that may not have government action requirements.  The Fugitive Slave Clause provides that “No person held to service or labor 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 labor, but shall be delivered up on claim of the party to whom such service or labor may be due.” 

Does this Clause require private citizens to deliver up fugitive slaves on claim of the alleged owner?  The language does not explicitly restrict itself to government officials.  But one might think it was implicit, especially as the first part of the sentence seems addressed to the state, as it asserts that no law or regulation should operate to free the fugitive slave.  Again, I genuinely don’t know what is the correct reading.

A similar question arises as to the Extradition Clause, which provides: “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.”

Enforcing the Fugitive Slave Clause: The Fugitive Slave Clause is sadly one that was in my view misinterpreted from the beginning.  The Clause does not provide Congress with a power – it is purely about prohibiting certain state laws (freeing fugitive slaves) and placing an obligation (to return fugitive slaves).  Thus, the Necessary and Proper Clause could not be used by Congress to pass laws enforcing the Clause.  Consequently, the Fugitive Slave Act of 1793 was unconstitutional, even though the Supreme Court approved it in Prigg v. Pennsylvania.

If the Fugitive Slave Clause could not be enforced by Congress, how could it be enforced?  Mainly through the courts.  If a state purported to free a fugitive slave, that law would be unconstitutional.  What if a state official (or an individual, assuming no state action requirement) refused to return a fugitive slave?  Presumably, an injunction could be obtained against the official (but perhaps not the state), requiring him to do so.

Reader Discussion

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on September 02, 2015 at 10:21:56 am

A pertinent case is Puerto Rico v. Branstad, 483 U.S. 219 (1987).


The Court said that Congress does have power to legislate regarding extradition.

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Andrew Hyman
on September 02, 2015 at 13:20:24 pm

I've argued that the consensus that the Thirteenth Amendment applies to private action is wrong. See my published article "The Thirteenth Amendment 'Exception'to the State Action Doctrine: An Originalist Reappraisal"

In 1865, the Thirteenth Amendment banned slavery in the United States. There is an overwhelming consensus that the Thirteenth Amendment represents an exception to the state action doctrine – the general rule that the U.S. Constitution does not apply to private actors. There has never been an analysis of this assertion using reasonable observer originalism. As a result, the consensus view on the Thirteenth Amendment threatens to undermine a key feature of the Constitution – that it provides rules of conduct solely for governmental actors.

This Article uses reasonable observer originalism to examine the text and context of the Thirteenth Amendment. This is the first analysis that finds that Section One of the Thirteenth Amendment is not the aberration that most have claimed; it is consistent with the state action doctrine and only applies to governmental actors. However, Section Two allows Congress to act on private individuals when a state has refused to enforce its generally applicable laws protecting bodily integrity and freedom from restraint. Both aspects of this analysis demonstrate how the case law that has arisen from the Thirteenth Amendment is in harmony with the revised view set forth in this Article, and that the constitutional ban of slavery is properly understood as an anti-caste provision prohibiting discriminatory governmental exemptions from laws protecting persons from physical force.

Part I of this Article describes the consensus view that the Thirteenth Amendment is an exception to the generally accepted maxim that the U.S. Constitution applies solely to governmental actors. Examining constitutional context and using the techniques of intratextualism, Part II explains the flaws in the reasoning advanced in support of the consensus view. Part III describes how the original meaning of the term “slavery” denoted a legal institution created and maintained by state action. Similarly, Part IV describes how the original meaning of “involuntary servitude” is consistent with a state-centered view of the institution. Part V analyzes how the relationship between the Civil Rights Act of 1866 and the Fourteenth Amendment reinforces the plausibility of the state-action interpretation of the Thirteenth Amendment. Part VI then describes how Section Two of the Thirteenth Amendment permits Congress to reach private conduct, even though Section One only directly reaches state conduct, and how this interpretation makes sense of the existing case law regarding the scope of the Thirteenth Amendment.

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Image of Ryan
on September 03, 2015 at 08:52:54 am

[…] The Fugitive Slave Clause, State Action, and Congressional Power […]

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The College Board’s Modified, Limited Hang Out - Freedom's Floodgates

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