“At last it occurred to me that what I had lost was a country.” THOREAU Then I recently reread “Slavery in Massachusetts,” the angriest essay that Henry David Thoreau ever wrote, and now I can’t get it out of my head. A fugitive slave had been captured in Boston and, despite abolitionist resistance, shipped back to his enslaver in Virginia. Everything about the case enraged Thoreau. He was angry that federal troops had occupied the city, angry that the governor allowed the president to seize control of the state militia. He was angry that no one enforced state laws giving fugitives their civil rights, and angry at state officials who obeyed the laws of slavery and ignored one of their own that commanded resistance. In the face of a government dominated by slave-holding states, Massachusetts should have defended its sovereignty, even if blood should flow and the Union itself be dissolved. “My thoughts are murder to the State.” Thoreau initially delivered “Slavery in Massachusetts” at a Fourth of July rally in 1854. Even today it gives off enough heat to light the tinder of my own anger and despair. There are too many parallels between the rendition of slaves and the Trump rendition of immigrants, too many similarities between the troops then occupying Boston and the Marines and Immigration and Customs Enforcement (ICE) agents recently deployed to our cities. Behind both of these — the treatment of immigrants and the control of armies — lie questions of states’ rights, a term I have long held in contempt but now hold up as a stay against the loss of my country. Can a state that protects its immigrants with sanctuary laws resist a government that sues to quash them? Who, at the end of the day, controls the National Guard, the governors, or the president? Is the structure of the republic robust enough to settle such questions peacefully, or will the current regime’s taste for violence lead to settlement by other means? 
The events that got Thoreau so hopping mad began in May 1854, when the fugitive slave Anthony Burns was jailed in Boston, pending rendition to Virginia. Two days after his arrest, a poorly organized mob tried and failed to free him from the Court House. President Franklin Pierce then ordered five companies of U.S. Marines and artillery to enter the city while the U.S. marshal, authorized by law to command assistance from “bystanders, or posse comitatus,” enlisted several hundred “specials,” arming them with cutlasses, pistols, and billy clubs. Boston’s mayor called out the state militia to help, encouraged by a telegraph from the White House agreeing to pay all expenses (a sum exceeding $500,000 in today’s dollars). The militia, effectively federalized, consisted of a thousand rank and file, eight companies of artillery, eleven of light infantry, and several of cavalry — the National Lancers and the Light Dragoons. Federal troops, with permission to fire without warning, mounted a brass cannon by the Court House, loaded it to the muzzle with grapeshot and pointed it at the crowd. This show of force culminated several days later when the marshal’s posse marched Anthony Burns to the ship that would carry him south. With a crowd of over 50,000 people bearing witness, Burns walked surrounded by marshals with drawn swords. Ahead marched the Marines, the infantry, and the National Lancers on horseback. Behind marched more Marines, a horse-drawn cannon, and the mounted Light Dragoons. As they neared the city docks, some of the militia, now drunk, taunted the crowd with a chorus of “Carry Me Back to Ole Virginny.” One witness to the rendition of Anthony Burns wrote that, in meeting “the armed power of the United States,” citizens were made painfully aware of “the fact, before unfelt, that they were the subjects of two governments.” That would have come as no surprise had they been more familiar with the Constitution, for its framers had indeed bestowed a species of dual citizenship on its subjects. As James Madison explained in Federalist No. 28, published during the debates over the Constitution, the envisioned government would not be “a national one”; it would have power over only “certain enumerated objects” and leave “to the several States a residuary and inviolable sovereignty” over all others. Before the Civil War, civil rights laws in Northern states were at times described in just such terms, as in 1857, when a Milwaukee newspaper declared that a law defending fugitive slaves “holds up the shield of State Sovereignty to protect citizens of Wisconsin from the aggressions of Slave Power.” The Framers had good reason to bestow sovereignty on the states. Well-acquainted with monarchy, the generation that brought this nation into being was exceedingly wary of what we now describe as a unitary executive. Influential men, wrote one New England minister in 1775, have “an insatiable lust of power”; in every age they lead “their blind confiding country-men into the very jaws of slavery, vassalage, and ruin.” The divided nature of American federalism was designed to check that grievous appetite. “Federalism was our Nation’s own discovery,” wrote Justice Anthony Kennedy in 1995. “The Framers split the atom of sovereignty.” Indeed, I would say that they split it twice over, not just into the triarchy of the legislature, the executive, and the judiciary, but also into the diarchy of state power and federal power, all with the explicit intention of destroying the monarchy of their youth. The rendition of Anthony Burns vividly demonstrates the tension inherent in the split atom of state and federal power. Early in his angry essay, Thoreau calls the reader’s attention to two laws with which Massachusetts intended to express its sovereignty, and which, had they been obeyed, might have prevented Burns’ removal. The first of these was a statute in 1837 meant to guarantee trial by jury to an alleged fugitive; the second, from 1843, made it illegal for state officials to help detain anyone claimed as a fugitive slave. These two laws are typical
Immigrants and Abolitionists
