Introduction
Our Constitution’s Fourth Article is devoted to the relations between the states and the Union. Section 2 of that Article sets forth three Clauses, each of which concerns the movement of persons throughout the Union.
The first of these, the Privileges and Immunities Clause, stipulates that the citizens of each state shall enjoy the “privileges and immunities of citizens” in the other states. Conversely, where the interstate traveller is a fugitive from criminal justice, the second provision—the Extradition Clause—requires the person’s forcible rendition to the state where the alleged crime occurred. Finally, the Fugitive Slave Clause (now obsolete) extended this rule of coercive rendition to interstate fugitives from slavery—that is, fugitives from injustice.
Unlike the other clauses of Article IV, the provisions in Section 2 vest in Congress no express enforcement power or duty. Instead, each uses a passive-voice verb—“shall be entitled” (in the first clause) and “shall be delivered up” (in the second and third clauses)—without any clear identification of the authority or authorities who are to ensure this entitlement or this rendition. The provisions mention only the persons entitled to the benefit: the citizen, under the Privileges and Immunities Clause; the executive of the state of the alleged crime, under the Extradition Clause; and, although not named as such, the slaveholder under the Fugitive Slave Clause.
Before the Civil War, the Fugitive Slave Clause and the Privileges and Immunities Clause occasioned intense national controversy. Americans disagreed about both the scope of these provisions and the degree to which the federal government had some implied power or duty to enforce them. These legal disputes, in turn, reflected deep political divisions on questions related to slavery, race, and citizenship.
Since the Civil War, Article IV, Section 2 has been largely uncontroversial. By abolishing slavery and securing black citizenship, the Reconstruction Amendments largely resolved the antebellum disputes arising under Article IV. Today jurists largely agree as to the central meaning of the three clauses.
The Privileges and Immunities Clause
According to the currently prevailing interpretation, the Privileges and Immunities Clause entitles a citizen of one state, while sojourning in other states, to equal treatment with local citizens. That is to say, the Clause prohibits discrimination on the basis of a citizen’s state of residence. The antidiscrimination rule extends to certain fundamental rights that a state may afford its own citizens, including rights of travel, residence, trade, employment, property, and others. Still, despite the mention of “all privileges and immunities,” some rights fall outside the antidiscrimination rule; the states remain free to discriminate in favor of their own citizens as to the political rights of voting and office-holding, and non-fundamental activities like recreational hunting and fishing.
The adoption of the Privileges and Immunities Clause addressed a key problem inherent in the new federal system. On July 4, 1776, the representatives of “one People” had declared that the thirteen “united Colonies” were “free and independent states.” From the beginning, the United States was marked by a tension between unity and multiplicity: one united people but thirteen independent states. And from the beginning, this tension posed many challenges, including the threat that the several states’ independence would turn former fellow British subjects into citizens of thirteen separate republics—mutual aliens, rather than one people.
To meet this danger, the Articles of Confederation included a provision expressly designed “to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union.” By this rule, the “free inhabitants” of each state would not be foreigners vis-à-vis the others, but instead “entitled to all privileges and immunities of free citizens in the several States.” These privileges included the freedom of “ingress and regress” and “all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively.” This promise was, as Alexander Hamilton would note, the “very basis of the Union.”
With a few modifications, the Fourth Article of the Constitution retained this provision from the Articles of Confederation. For the most part, it generated little discussion and debate during the Founding era—probably because it was inherently conservative, preserving an existing understanding of interstate norms, and because there were few substantive disputes among states (with the notable exception of those regarding slavery).
One omission, however, did prompt some modest dissent. Under the Articles, the citizen had enjoyed an express exemption from any local legislation that would “prevent the removal of property imported into any State” back to the citizen’s home state. The probable purpose of this provision was to protect nonresident slaveholders against local antislavery law. Over the objection of South Carolina’s Charles Pinckney and some other slaveholding delegates, the Convention approved the omission of this guarantee.
Decades later, slavery would provoke more intense conflict over the interpretation of the Privileges and Immunities Clause. Two main disputes developed and intensified in the decades before the Civil War. First, as northern states grew increasingly intolerant of slavery, many slaveowners insisted that the Clause secured what its drafters had omitted: a right to travel in the free states, exempt from local antislavery law. Some northern courts agreed, but other authorities replied that traveling slaveowners were entitled only to equality with local citizens and could thus lose any property right immediately upon the slave’s entry into the state.
Second, as southern and western states became increasingly intolerant of free blacks’ residence, many objected that new laws restricting the rights of free people of color violated their citizenship rights. But authorities in the South and West generally upheld these racist policies primarily on the claim that free blacks were not Americans and did not qualify as “citizens” under Article IV, but also on the interpretation that even if citizens, free people of color were entitled to no more than the meager rights (if any) the local laws afforded to native “negro” populations.
On the eve of the Civil War, a third, related dispute arose. Increasing southern intolerance of antislavery opinion effectively prevented antislavery Americans from traveling in the South. Southerners defended these policies’ consistency with Article IV on interstate-equality grounds, but some antislavery northerners argued that the Constitution entitled citizens to the right to travel and even to express their opinions in every state of the Union, local anti-anti-slavery policies to the contrary notwithstanding. According to Abraham Lincoln and many other Republicans, Congress had as much power to secure these entitlements as to enforce the Fugitive Slave Clause.
The Extradition Clause
The Extradition Clause provides for the return of persons charged with a crime in one state who fled to another state. In some ways, the extradition clause was the mirror image of the Privileges and Immunities Clause. The “flip side” of interstate citizenship was interstate cooperation, whereby each state would help to enforce the criminal jurisdiction of the other states. Accordingly, the Articles of Confederation mandated the interstate rendition of fugitives “from justice”—that is, from criminal accusation, process, or punishment.
Article IV, Section 2 likewise provided for the return of persons charged with a crime in one state who fled to another state, with only minor changes from the version in the Articles. The Extradition Clause provided that the “executive Authority of the State from which he fled” should demand the rendition of the fugitive, so a copy of the indictment or sworn affidavit certified by the governor was required for extradition. However, because the provision was not self-executing, it required legislation to put it into effect. This became evident when Virginia refused to “deliver up” to Pennsylvania three fugitives from justice who had been accused of kidnapping a free black man, John Davis, just one year after the adoption of the Constitution. This controversy led Congress to include an extradition clause in what became known as the Fugitive Slave Law of 1793. The language of this legislation mirrored that of Article IV, Section 2 but declared it the “duty of the executive authority” to act on an extradition request.
Although many fewer conflicts arose regarding the Extradition Clause than the Fugitive Slave Clause, those that did all had to do with slavery. One such case set a precedent that was not overturned for over a century: Kentucky v. Dennison (1860). In that case, the Ohio governor, William Dennison, Jr., refused to extradite a fugitive from Kentucky who had been charged with helping a girl escape from slavery. The court ruled that although the governor had a duty to return the fugitive from justice, he could not be compelled to do so by a writ of mandamus. This precedent was not overturned until the 1987 case of Puerto Rico v. Branstad.
Today, the Uniform Extradition Act has been adopted in 48 states, Puerto Rico and the Virgin Islands (but not in Mississippi and South Carolina). The Extradition Clause covers “Treason, Felony, or other Crime,” and the Supreme Court has interpreted the crimes for which a person is subject to extradition very broadly, to include every offense punishable by law of the state in which the offense was committed. It is not a requirement that the accused consciously fled to avoid prosecution, only that the person did in fact flee from justice.
The Fugitive Slave Clause
The third clause of Article IV, Section 2 is known as the “Fugitive Slave Clause.” It is one of five clauses in the Constitution that dealt directly with slavery, although it does not use the word “slave,” and instead refers to “person[s] held to Service or Labour.” Compared to the Slave Trade Clause and the Three-Fifths Clause, the Fugitive Slave Clause occasioned very little debate at the time it was adopted, but fierce conflicts arose about its scope and enforcement in the decades that followed.
The Clause was adopted at the Constitutional Convention of 1787 on the motion of Pierce Butler and Charles Pinckney of South Carolina. In opposition, James Wilson of Pennsylvania disagreed because “this would oblige the Executive of the State to [return fugitive slaves], at the public expence.” The proposal was withdrawn, but then adopted a day later with no dispute. The only response recorded was Connecticut delegate Roger Sherman’s sarcastic comment that he “saw no more propriety in the public seizing and surrendering a slave or servant, than a horse.”
Over the course of the Constitutional Convention issues relating to slavery complicated nearly every debate and the importance of slavery became increasingly evident. In the Convention’s final actions on slavery-related matters, the language of the Fugitive Slave Clause was discussed and amended. The Committee of Detail reported the language “No person legally held to service or labour in one state escaping into another shall . . . be discharged from such service or labour . . . .” The Convention substituted the term “under the laws thereof” after the word “state” for the term “legally.” The delegates made this change to satisfy those who sought to distance themselves from the institution of slavery and make clear that it was a local institution only in certain states. This was a small triumph for those who were uneasy about slavery, but it had no practical effect.
At the end of the day, since the word “slavery” was never mentioned in the document, northerners could argue that the Constitution did not recognize the legality of slavery. However, southerners such as General Cotesworth Pinckney argued, “We have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before.” Ultimately, the issue of slavery’s constitutional status was far from settled.
Like the other two Clauses, the Fugitive Slave Clause did not provide for any particular enforcement powers. Congress passed the Fugitive Slave Act of 1793, with almost no opposition or debate, to provide for enforcement. The Act authorized a slaveowner or his agents to cross a state line, seize an alleged fugitive slave, take the slave before any judge or local magistrate, and there, upon proof of ownership, receive a certificate entitling him to return home with his captive. Financial penalties could result for interfering with the recovery of a fugitive. The law’s evidentiary requirements were loose and oral testimony was sufficient; it did not provide for normal legal processes like trial by jury. It gave the alleged fugitive no protection against self-incrimination and no assurance that he could testify on his own behalf. It also did not specify a time limitation, so slaves could be claimed many years after the alleged escape.
From the 1830s until 1850, many northern states attempted to provide some legal protections for escaped slaves who faced potential recapture in the North by passing personal liberty laws. These laws forbade the participation of state authorities or the use of state property in the capture of a fugitive. Other laws provided runaway slaves with procedural protections that were not specified in the Act, such as trial by jury and the right to testify. By and large, however, a constitutional settlement prevailed in both northern and southern states: states had the right to determine the legal status of their own inhabitants, including defining people as slaves and authorizing their re-enslavement if they ran away to a free state; but states also had the authority to punish a kidnapper for reducing a free person to slavery, and to define procedures to protect free people from kidnapping.
Prigg v. Pennsylvania (1842) tested the constitutionality of the Pennsylvania personal liberty law. Edward Prigg had been convicted on kidnapping charges in Pennsylvania for taking a recaptured fugitive slave back to Maryland without obtaining the required certificate. The Court found that the Pennsylvania statute under which Prigg had been indicted was in conflict with the federal law of 1793 and with the Constitution. Justice Story’s decision was based on his belief that the Fugitive Slave Clause “constituted a fundamental article, without the adoption of which the Union could not have been formed.” Therefore, “seizure and recaption” of fugitive slaves was a basic constitutional right and the states could not pass laws interfering with the right. The opinion held that only Congress had the power to pass legislation implementing the Fugitive Slave Clause. This judicial nationalism threatened to upend the old constitutional settlement.
As sectional conflict increased, the constitutional settlement that had prevailed among the states began to break down. As the Missouri court opined in Scott v. Emerson, “Times are not as they were when the former decisions on this subject were made.” Northern and southern courts stopped extending “comity,” or respect to one another’s decisions. The Compromise of 1850 included an even more stringent new Fugitive Slave Act, in which suspected fugitives were denied the right to trial by jury and the right to testify in their own behalf. The Act made rendition of fugitive slaves a federal affair, forbidding state officers to interfere with federal marshals and making it a criminal offense for private citizens to do so. Nevertheless, abolitionists in northern states formed vigilance committees to ward off slave catchers and kidnappers, and conducted spectacular rescues. Northern juries refused to convict rescuers. When the high courts in Wisconsin and Ohio held the 1850 Fugitive Slave Act unconstitutional in 1854, they did so with broad popular support. Although the U.S. Supreme Court eventually overturned the decisions in 1859, in Ableman v. Booth, by that time it was quite clear that North and South were on a collision course.
At the heart of these antebellum controversies was a more fundamental disagreement: what is the relationship between slavery and the Constitution? Did the Constitution condone, support and protect slavery, or was it silent on slavery’s legality, allowing for the institution to wither away in the future?
Pro-slavery southerners were virtually unanimous in asserting the centrality of slavery to the Constitution. Besides celebrating the undeniably pro-slavery provisions, they asserted that one of the fundamental privileges of American citizens was the right to travel, and even stay for long periods of time, anywhere in the Union with their enslaved human property.
Even among anti-slavery advocates, there were sharp disagreements about how to interpret the Fugitive Slave Clause, and the slave clauses of the Constitution as a general matter. Taking one extreme view, William Lloyd Garrison described the Constitution as “the pro-slavery, war sanctioning Constitution of the United States.” This view had much in common with southern views on the Constitution. Garrison declared the Constitution to be “a covenant with death, an agreement with hell,” precisely for the reason that it did sanction slavery.
By contrast, Frederick Douglass held a minority viewpoint within anti-slavery politics based on a textualist reading of the Constitution. Douglass argued that the Constitution made slavery illegitimate everywhere, in the South as well as in the territories. He argued that the Constitution does not explicitly condone slavery and the “WRITTEN Constitution” should not be “interpreted in light of a SECRET and UNWRITTEN understanding of its framers.” Douglass believed that the federal government could abolish slavery because it violated the Fifth Amendment due process guarantee, the Article IV guarantee of republican government, and other clauses of the Constitution. He also made originalist arguments about the Founders’ intentions to have slavery gradually wither away. By this understanding, the Constitution had become corrupted by acquiescence in pro-slavery custom, but the Constitution’s anti-slavery character could be redeemed by federal action. He also relied on a natural law interpretation of the Constitution, arguing that it should be read in conjunction with the Declaration of Independence and given the meaning that best expressed the ideals of the Declaration.
A third understanding was exemplified by Lincoln and other moderately antislavery Americans. The Constitution did indeed contain concessions to slavery. But these were compromises, not principles. The Constitution’s principles were fully compatible with the eventual abolition of slavery whether by state legislation and federal territorial legislation, and, if necessary because of minority intransigence, eventual constitutional amendment. As William Seward argued, slavery was merely “temporary, accidental, partial and incongruous,” but freedom was “perpetual, organic, universal . . . in harmony with the Constitution of the United States.”
For the most part, the Reconstruction Amendments resolved these Article IV controversies. By abolishing slavery throughout the Union, the Thirteenth Amendment nullified any person’s right to enjoy the rendition of fugitive slaves or to travel with slaves. And the Fourteenth Amendment replaced the Privileges and Immunities Clause as a more solid basis for protecting all Americans—regardless of race, state of residency, or otherwise—against state infringement of their fundamental rights as citizens.
Nonetheless, the antebellum debates as to slavery’s place in the Constitution have to some extent continued to this day. In 1987, Justice Thurgood Marshall gave a speech cautioning against the “flag-waving fervor” of the bicentennial celebration of the Constitution, explaining that the 1787 Constitution was “defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.” Then-Assistant Attorney General William Bradford Reynolds responded in a speech later that month that it was wrong to think that there “are two constitutions, the one of 1787” and the one of today. Even if the Constitution acknowledged or lent support to slavery, that support was necessary to the political compromise that secured its ratification. These debates about whether the 1787 Constitution did or did not support slavery, based on the wording and adoption of the slave-related clauses, contribute to one’s views of the Constitution as a living, changing document or one that still means what it did in 1787.