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**JULY 21, 2023**
Kuttner on TAP
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**** Why It Feels Like the 1850s
States that deny rights to women are demanding that free states do their
bidding-with the help of courts.
The Fugitive Slave Act was part of the Compromise of 1850, which was
supposed to stave off civil war. The act required that slaves be
returned to their owners, even if they had escaped to a free state. The
act also made the federal government responsible for tracking down,
returning, and punishing escaped slaves.
In the
**Dred Scott** case of 1857, Scott and his wife Harriet sued for their
freedom, on the grounds that they had lived for four years in Illinois
and the Wisconsin Territory, where slaveholders had no rights. But the
Supreme Court, in Dred Scott v. Sandford
<[link removed]>, held that no
person of African ancestry had citizenship rights, and thus had no
standing to sue. It took the three Civil War amendments to nullify the
**Dred Scott** decision and grant African Americans full citizenship.
Does all this sound familiar, with more recent echoes? It sure feels
increasingly like the 1850s, with slave states trying to get free states
to do their bidding and enlisting the federal government to help.
Last month, the Republican attorneys general of 19 states sent a letter
to President Biden's HHS Secretary, Xavier Becerra, demanding access
to the medical records of people
<[link removed]>
who cross state lines to seek abortions or gender-affirming care. The
Biden administration is not cooperating, but the next step will be
litigation. Given the Supreme Court's string of decisions depriving
women and people from LGBTQ communities of their rights, this Court
could follow in the footsteps of the 1857 Court upholding the Fugitive
Slave Act and command free states and the federal government to
cooperate.
Meanwhile, taking advantage of the Court's other recent ruling banning
race-conscious affirmative action programs
<[link removed]>, Edward
Blum, the plaintiff in that case, has sent a letter to 150 selective
colleges and universities
<[link removed]>
warning them not to attempt to achieve diversity goals using proxies for
race such as economic factors and adversity. If they do, Blum has
written, more litigation will follow.
Litigation allows for discovery. Plaintiffs in a new suit could demand
emails and notes of discussion of applicants, which would clearly reveal
attempted work-arounds. Liberals who have comforted themselves with the
idea that economic diversity is an excellent second-best and valid in
its own right could be stymied again.
In the 1850s, abolitionists responded to escalating efforts to extend
slavery to free states, aided by corrupted courts, with acts of civil
disobedience. Under the laws of some states today, a woman who crosses
state lines to seek an abortion is committing civil disobedience-and
remember, the Court in the 2022 Dobbs
<[link removed]> case did
not prohibit abortion nationally but left it up to the states.
Soon a university that tests the limits of the Supreme Court's
affirmative action ruling will also be committing a kind of civil
disobedience. And let's recall, it took decades of civil disobedience
against unjust laws, led by heroes with names like Rosa Parks and Martin
Luther King Jr., to reverse those laws.
The deepening crisis of the 1850s ended with the election of Lincoln and
the Civil War. Today's overreach by slave states and far-right courts
does feel like the run-up to a civil war.
The denouement of the crisis of the 2020s will not be a full-on war. But
until either the Democrats gradually win legislative majorities and
appoint new justices to protect rights, or Republicans win national
power and snuff out democracy, we are in for prolonged trench warfare.
~ ROBERT KUTTNER
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<[link removed]>
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