Ableman v. Booth: How State Nullification Can Defy Tyrannical Government

By:  Thomas R. Eddlem
Ableman v. Booth: How State Nullification Can Defy Tyrannical Government

In 1854, Wisconsin rejected the federal Fugitive Slave Act, which mandated Northern states return Southern slaves without due process, demonstrating both the validity and usefulness of nullification.

When Georgia joined the Confederacy and seceded from the union on January 29, 1861, a state convention explained the state’s reasons for separation. Georgia singled out Wisconsin’s Supreme Court for particular excoriation because this court had the temerity to declare null and void within the state of Wisconsin the Fugitive Slave Act of 1850. This federal law — a part of the Compromise of 1850 between Southern states where slavery was legal and Northern states where it was not — required that runaway slaves, upon capture, be returned to their masters. The subsequent U.S. Supreme Court unanimously upheld the constitutionality of this law, overturning the Wisconsin Supreme Court decision, the Georgia convention noted. Not only that, but Wisconsin’s “own local courts with equal unanimity (with the single and temporary exception of the supreme court of Wisconsin), sustained its constitutionality in all of its provisions.”

The only factually inaccurate part of Georgia’s declaration was the word “temporary.” To this day, Wisconsin courts have refused to recognize the U.S. Supreme Court decision Ableman v. Booth as legitimate or binding on state courts. That 1859 U.S. Supreme Court decision claimed to overrule the Wisconsin Supreme Court’s 1854 decision In Re: Booth, which declared the federal Fugitive Slave Act of 1850 unconstitutional. According to the Wisconsin court system today, “The U.S. Supreme Court overturned that decision but the Wisconsin Supreme Court refused to file the U.S. Court’s mandate upholding the fugitive slave law. That mandate has never been filed.” The Wisconsin decision on the Fugitive Slave Act is the one instance of successful state judicial nullification of federal law that still stands in a state.

The Booth cases brought into focus two of the key issues of the day: Whether the U.S. Constitution was a confederation of states that permanently protected slavery or a freedom document that temporarily recognized slavery as a legacy of colonial times, and whether the U.S. Supreme Court was, or the states were, the final arbiter of infringements of the U.S. Constitution.

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