September 2007, Volume 93, Issue 5|
Rethinking Ableman v. Booth and States' Rights in Wisconsin
93 Va. L. Rev. 1315 (2007)
Ableman v. Booth occupies a significant place in constitutional history for upholding the Fugitive Slave Act of 1850 and presenting the antebellum Supreme Courtís theory of federalism. This Note presents a new interpretation of the statesí rights movement in Wisconsin that necessitated the Supreme Courtís ruling in Ableman and argues that, viewed in this historical context, the decision was a complete failure. When a fugitive slave was captured in Milwaukee, Wisconsonites wished to reject the principles of the Fugitive Slave Act in response to the Kansas-Nebraska Act but were not yet willing to violate the law. The Supreme Court of Wisconsin enabled social change by providing the people with statesí rights as a legal basis to reject the Fugitive Slave Act. Federal attempts to vindicate the Fugitive Slave Act, culminating in Ableman, created a backlash that transformed statesí rights into a popular movement. Party politics exacerbated this backlash, as Republicans opportunistically used statesí rights against the more moderate Democrats. As a result, statesí rights controlled every major election in Wisconsin and nearly precipitated a civil war. Moreover, Ableman nearly pushed other states to use statesí rights to challenge the federal government, as national antislavery leaders hoped to use the theory for their own goals. Conflict was averted only because the theory became inconvenient for Republicans in the 1860 presidential election, not because of federal coercion resulting from Ableman.
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