Internment camps; raids in schools, hospitals, and churches; and a “small army” of private citizens—efforts are underway to fulfill President Donald Trump’s campaign promise of mass deportations of undocumented residents with the goal of removing one million people per year from the United States. Against these efforts, many Democrat-led cities and states have announced that they will not comply and are instituting measures to protect their residents from immigration enforcement by the federal government.
Although this militaristic wave of deportation efforts is unprecedented in American politics, the legal questions concerning the balance of state and federal authority are familiar. In 1850, following Congress’s passage of the Fugitive Slave Act, a similar legal battle unfolded between Northern states and the federal government. The North’s protection of escaped enslaved people offers a constitutional roadmap for how modern-day authorities may protect the liberties of their residents against the Trump administration’s actions.
Passed as part of the Compromise of 1850, the Fugitive Slave Act sparked national outrage and debate over state sovereignty and slavery. The new law compelled federal marshals to aid in recapturing formerly enslaved people who fled to the North. It also criminalized the aiding of these fugitives and sharply restricted due process by denying fugitives the right to testify or have a trial by jury.
Northern cities responded with protests, riots, civil disobedience, and community vigilance measures. In Newport, Rhode Island, abolitionists formed a self-defense association to protect fugitives and monitor potential kidnappers. The concern extended beyond escaped enslaved people: The law’s lack of due process put free Black residents at increased risk of being abducted and sent to the South. State legislatures also resisted by passing “personal liberty laws” to make the federal law unenforceable. The Wisconsin Supreme Court even attempted to nullify the federal law. The Supreme Court eventually unanimously struck down the Wisconsin effort in Ableman v. Booth in 1859, citing the supremacy of federal law over the states.
These state-level responses to the Fugitive Slave Act and their degree of efficacy can guide strategies for contemporary resistance against the Trump administration’s mass deportation plans. A direct nullification effort akin to that of the Wisconsin Supreme Court in 1859 would be impractical and unconstitutional. Even if Trump does not pursue Congress’s help, the US Supreme Court has firmly upheld immigration and foreign affairs as a federal rather than state power.
States’ “personal liberty laws” to protect free Black residents demonstrate another path forward. For instance, in 1850, Vermont passed the Habeas Corpus Law. This law set up processes to protect accused fugitives by authorizing and compelling state officials to exercise habeas corpus procedures, such as a trial by jury and the appeals process. The law also empowered authorities to “use all lawful means to protect, defend, and procure to be discharged” anyone arrested under the pretense of the Fugitive Slave Act. Massachusetts similarly passed the Personal Liberty Law in 1855 to assert state control and due process and punish anyone attempting to abduct suspected fugitives. Pennsylvania classified the removal of any “negro or mulatto” from the state as a felony. By guaranteeing extensive legal proceedings and mandating state law enforcement intervention, these states made the Fugitive Slave Act unenforceable in their jurisdictions.
By empowering state officials to directly interfere with federal authorities, state-level actions were effective in protecting people from enslavement. In South Carolina’s 1860 Declaration of Secession from the Union, the state’s legislators held the potency of these personal liberty laws as a grievance against the United States.
How were these laws legally distinct from Wisconsin’s nullification measure? Despite then-President Millard Fillmore decrying Vermont’s actions as a constitutional crisis, these states did not explicitly nullify the federal law and reject the Constitution. Rather, legislators and advocates argued for states’ constitutional ability to uphold due process rights to safeguard the civil liberties of their inhabitants. In an 1851 editorial in the Vermont Watchman, E.P. Walton Jr., future US Representative from Vermont, outlined the constitutional case for the state’s continued resistance to the federal law: He saw the unlawful kidnapping of free Black residents as a violation of the Fifth Amendment’s Due Process Clause that states could actively oppose. Citing the constitutional amenders’ intentions with the Bill of Rights, he contended the amendments are “restrictions upon Congress—not upon the States.”
The Fifth Amendment’s Due Process Clause limiting federal action is consistent with other amendments and historical interpretations of the Bill of Rights. In addition to protecting individual rights, the Bill of Rights intended to restrict a self-interested government from violating the people’s freedoms. To do so, the amendments weakened the federal government and structurally empowered states, which were seen as more directly representative of the people. As a check on an overzealous federal authority violating citizens’ liberties, the founders may have intended for states to take action to facilitate due process.
Walton also identified how the language of the Fifth Amendment refers to “person” rather than “citizen” or “resident.” The Constitution’s language holds separate meanings between “person” and “citizen,” and the framers’ use of “person” suggests a broad jurisdiction of due process rights. Suspected fugitive enslaved people, not yet proven to have escaped, would qualify for Fifth Amendment protections. Similarly, alleged undocumented immigrants, not yet proven to be in violation of civil law, are also under the jurisdiction of the Fifth Amendment.
Even so, the Trump administration has openly violated due process and justified its efforts by citing victims’ lack of citizenship. On April 1, White House Deputy Chief of Staff Stephen Miller posted on X, “If you illegally invaded our country the only ‘process’ you are entitled to is deportation.” This approach to due process operates counter to the Constitution.
Similar to “personal liberty laws” in the 1850s, states should feel legally protected to actively resist a federal government violating due process rights. Presently, many Democrat-led state and city governments are implementing part of this strategy, with officials instructing their local law enforcement to not enforce federal immigration law. The Constitution also allows states to decline to lend local resources toward federal programs, rebutting conservatives’ claims that sanctuary states and cities are unconstitutional due to the Supremacy Clause. Yet, states should play a more active role in reasserting their inhabitants’ constitutional liberties and restricting unlawful detentions. While such actions would be legally contentious, they may be more effective in stopping deportation efforts.
While a “states’ rights” argument may be uncomfortable to Democrats—because of its contemporary application by conservatives and history as a counterargument to federal civil rights—the actions of Northern states in the 1850s demonstrate its precedent as a tool to protect people’s liberties. As the Trump administration continues to stretch the legal limits of the executive branch, state and local authorities should be confident in exercising a more active role in protecting their inhabitants’ rights against the federal government.