Rethinking Ableman V. Booth and states' rights in Wisconsin

Virginia Law Review

Volumn 93, Issue 5, 2007, Pages 1315-1354

  Schmitt, Jeffrey ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 35348966922     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (239)

1. 62 U.S. 506 (1859);
2. see, e.g., Don E. Fehrenbacher, The Slaveholding Republic: An Account of the United States Government's Relations to Slavery 239-40, 291 (Ward M. McAfee ed., 2001);
3. Alfred H. Kelly et al., The American Constitution: Its Origins and Development 238, 278-79 (7th ed. 1991).
4. See Kelly et al., supra note 1, at 238, 278-79.
5. Fugitive Slave Act, 9 Stat. 462 (1850) (repealed 1864).
6. See infra notes 194-96 and accompanying text.
7. See Robert M. Cover, Justice Accused: Antislavery and the Judicial Process 189 (1975) ("Ableman v. Booth ... was the most extensive and successful of the many attempts to make a new constitutional law that would at least emphasize the elements of the Constitution that were essentially antithetical to slavery ....").
8. See, e.g., Fehrenbacher, supra note 1, at 236.
9. See, e.g., id. at 237 ("[T]he local unpopularity of an act of Congress had raised the specter of nullification.");
10. A.J. Beitzinger, Federal Law Enforcement and the Booth Cases, 41 Marq. L. Rev. 7, 18 (1957) (calling the decisions "indefensible in law... [and] tantamount to judicial nullification");
11. Joseph A. Ranney, "Suffering the Agonies of Their Righteousness": The Rise and Fall of the States Rights Movement in Wisconsin, 1854-1861, 75 Wis. Mag. Hist. 83, 115 (1992) ("The general verdict of historians has been that the Wisconsin court's Booth decisions sacrificed legal principle for politics. The decisions have been seen as... nullification.").
12. For a contemporary account, see Annual Report Presented to the American Anti-Slavery Society: The Milwaukee Rescue and Decisions 49, 57 (1855) (explaining that the Anti-Slavery Society did "not regard this decision ... as of so much consequence in its legal bearings as in its political").
13. See, e.g., Beitzinger, supra note 7, at 18 (calling the action "[t]horoughly indefensible in law"); Jenni Parrish, The Booth Cases: Final Step to the Civil War, 29 Willamette L. Rev. 237, 245 (1993) ("This action flew in the face of the Wisconsin court's own assertion two years earlier ....");
14. Louise Weinberg, Methodological Interventions and the Slavery Cases; Or, Night-Thoughts of a Legal Realist, 56 Md. L. Rev. 1316, 1357 (1997) ("At this point an almost surreal thing happened.").
15. See H. Robert Baker, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War 120-22, 136-61 (2006);
16. Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War 134-35 (1995);
17. Michael J. McManus, Political Abolitionism in Wisconsin, 1840-1861, at 140-47, 177-80 (1998).
18. See Beitzinger, supra note 7, at 28-32;
19. George W. Carter, The Booth War in Ripon, Proceedings of the State Historical Society of Wisconsin 161, 162-63 (1903).
20. See infra note 173. Joseph Ranney also hints that the election of 1860 may have played a role. Ranney, supra note 7, at 112 & n.61.
21. 12A few studies have incidentally touched the subject. Professor Michael J. McManus documents the initial reaction of the Wisconsin legislature and the effect of the decision on the election of a Wisconsin Supreme Court justice. See McManus, supra note 7, at 174-78.
22. Professor Thomas Morris recounts the effect of Ableman on the personal liberty laws of the North. See Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North, 1780-1861, at 186-201 (1974).
23. 60 U.S. 393 (1856). See generally Austin Allen, Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court 1837-1857 (2006);
24. Walter Ehrlich, They Have No Rights: Dred Scott's Struggle for Freedom (1979);
25. Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (1978);
26. Mark A. Graber, Dred Scott and the Problem of Constitutional Evil (2006).
27. 41 U.S. 539 (1842).
28. See Morris, supra note 12, at 103-04, 109-17.
29. See Fehrenbacher, supra note 1, at 231-32, 244 ("A pursuing slaveholder took with him the relevant slave law of his own state, including... the presumption of slavery attaching to all people of color.").
30. See Fugitive Slave Act, ch. 60, 9 Stat. 462, 463-64 (1850) (repealed 1864).
31. Id. at 462.
32. Id. at 464.
33. See Stanley W. Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850-1860, at 26-45 (1970);
34. Fehrenbacher, supra note 1, at 239-44.
35. But see Cover, supra note 5, at 207 (asserting that the constitutionality of the Fugitive Slave Acts was "well-established by the 1850's").
36. See Prigg, 41 U.S at 613, 624; see also Paul Finkelman, Sorting Out Prigg v. Pennsylvania, 24 Rutgers L.J. 605, 630 (1993) ("At least seven justices accepted the notion that fugitive slaves were not entitled to due process rights.").
37. Commissioners did not meet the requirements of Article III, Section 1 of the Constitution for federal judges, such as lifetime tenure and a fixed salary. Also, because commissioners were paid a higher wage for returning an alleged fugitive to slavery, their new role arguably violated the Fifth Amendment's guarantee of due process.
38. Miller v. McQuerry, 17 F. Cas. 335, 337-41 (C.C.D. Ohio 1853) (McLean, J.); U.S. v. Hanway, 26 F. Cas. 105, 124 (C.C.E.D. Pa. 1851) (Grier, J.); In re Charge to the Jury, 30 F. Cas. 1007, 1010 (C.C.S.D.N.Y. 1851) (Nelson, J.). Justice Benjamin R. Curtis, though not ruling in his official capacity, defended the constitutionality and morality of the law in a written opinion published in the Boston Courier and in public speeches in Boston. Stuart Streichler, Justice Curtis in the Civil War Era: At the Crossroads of American Constitutionalism 42-52 (2005). Moreover, Curtis was frequently attacked by abolitionists for his supposedly proslavery opinions. See id. at 64-65.
39. But see Ranney, supra note 7, at 115 (contending that "in 1854 the constitutionality of the 1850 Act had never been formally decided" and thus the Wisconsin Supreme Court's decision to rule it unconstitutional was "by no means legally frivolous at the time [it was] made").
40. Avery O. Craven, The Growth of Southern Nationalism 1848-1861, at 64 (1953)
41. (citing Natchez Miss. Free Trader, June 27, 1849; Natchez Wkly. Courier, July 24, 1849).
42. David M. Potter, The Impending Crisis 1848-1861, at 97, 121 (1976).
43. The territorial concerns were addressed by admitting California as a state on her own terms, which meant without slavery, and establishing territorial governments in the rest of the Mexican Cession without the Wilmot Proviso.
44. Cong. Globe, 32d Cong., 1st Sess. app. at 65 (1850).
45. Vroman Mason, The Fugitive Slave Law in Wisconsin, with Reference to Nullification Sentiment, Proceedings of the State Historical Society of Wisconsin 117, 120 (Madison, Democratic Printing Co. 1896). The Free Soil Party, successor of the Liberty Party, was a small political party organized around opposition to slavery, especially in the territories.
46. See id. at 121 (quoting Free Soil Congressional Representative Charles Durkee and Democratic Governor Nelson Dewey).
47. But see McManus, supra note 9, at 71 (arguing that the people only accepted the Fugitive Slave Act because they never expected to see it enforced in Wisconsin).
48. See Theodore Clarke Smith, The Free Soil Party In Wisconsin, Proceedings of the State Historical Society of Wisconsin 97, 134-35 (Madison, Democratic Printing Co. 1895).
49. See id. at 133-34.
50. Potter, supra note 26, at 164.
51. Id. at 165 (quoting Douglas).
52. Id. at 175.
53. See, e.g., Anti-Nebraska Meeting, Wis. St. J. (Madison), Mar. 13, 1854 (calling the act an "outrage upon humanity" and the congressmen who passed it "dishonest and unworthy [of] the true confidence of a free and intelligent people").
54. See In re Booth, 3 Wis. 157 (1854);
55. Kidnapping Case! Man-Hunters on our Soil!!, Daily Free Democrat (Milwaukee), Mar. 11, 1854.
56. A Fugitive Slave in Wisconsin, Wis. St. J. (Madison), Mar. 14, 1854;
57. United States Commissioner's Court, Daily Free Democrat (Milwaukee), Mar. 22, 1854.
58. See History of Glover's Arrest, Daily Free Democrat (Milwaukee), Mar. 13, 1854.
59. Kidnapping Case! Man-Hunters on our Soil!!, supra note 37.
60. Kidnapping Case!-Man-Hunters on our Soil!!, Daily Free Democrat (Milwaukee), Mar. 13, 1854.
61. Great Meeting at Racine, Daily Free Democrat (Milwaukee), Mar. 13, 1854.
62. See A Fugitive Slave in Wisconsin, supra note 38.
63. See id.
64. See Great Meeting in the Court-House Square!, Daily Free Democrat (Milwaukee), Mar. 13, 1854.
65. Id.
66. Examination of S. M. Booth, For Aiding in the Rescue of John Glover, a Fugitive Slave from Missouri, Milwaukee Daily Sentinel, Mar. 22, 1854 (summarizing the testimony of Thomas Shepard).
67. Mr. Watkin's Speech before Commissioner Smith, Daily Free Democrat (Milwaukee), Apr. 5, 1854.
68. The Rescue Case, Daily Wis. (Milwaukee), Mar. 13, 1854.
69. Id.
70. Judge Miller's Decision, On the Discharge of B. S. Garland from custody of the Racine Co. Sheriff, Milwaukee Daily Sentinel, Mar. 16, 1854.
71. Howard Baker, however, argues that the rescue was an act of popular constitutionalism, which in this context meant that the people advanced the ultimate interpretation of the Constitution and had the power to enforce it. See Baker, supra note 9, at 23-26;
72. see also Howard Robert Baker II, The Rescue of Joshua Glover: Lawyers, Popular Constitutionalism, and the Fugitive Slave Act in Wisconsin 18-27 (2004) (unpublished Ph.D. dissertation, UCLA) (on file with the Virginia Law Review Association) (providing a more detailed account of his argument).
73. The Rescue Case, supra note 49.
74. The Fugitive Slave Law Repealed, Daily Free Democrat (Milwaukee), Mar. 13, 1854.
75. See Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity 11 (1981).
76. See id. at 340-42.
77. Id. at 341.
78. But see Baker, supra note 52, at 18-27 (arguing that the rescue should be seen as an expression of constitutional interpretation and enforcement by the crowd).
79. The Rescue Case, supra note 49.
80. A Fugitive Slave in Wisconsin, supra note 38.
81. The State of the Case-Judge Miller vs. the People and Constitution, Daily Free Democrat (Milwaukee), Mar. 13, 1854.
82. See United States Commissioner's Court, supra note 38 (summarizing testimony from eyewitnesses to the events surrounding Glover's rescue).
83. Booth, though not the only person arrested, was likely singled out because he was instrumental in organizing the crowd and because his speech precipitated the rush to the jail.
84. See More of the Slave Case-Arrest of Mr. Booth, Milwaukee Sentinel, Mar. 16, 1854; United States Commissioner's Court, Daily Free Democrat (Milwaukee), Mar. 24, 1854;
85. see also Baker, supra note 9, at 80-92 (giving a summary of the trial).
86. United States Commissioner's Court, Daily Free Democrat (Milwaukee), Mar. 24, 1854.
87. See, e.g., The Kidnapping Case, Daily Free Democrat (Milwaukee), Apr. 4, 1854 (reprinting Detroit Democrat) (explaining that enforcement "will result in discomfiture and shame to the prosecutors");
88. Sentiment of the Press, Daily Free Democrat (Milwaukee), Apr. 1,1854 (reprinting Mineral Pt. Trib.) (predicting that enforcement "will only create a ten fold stronger opposition to the enforcement of its penalties").
89. See Anti-Slave-Catchers' Mass Convention, Daily Free Democrat (Milwaukee), Apr. 11, 1854.
90. But see Baker, supra note 9, at 94 (arguing that the meeting advanced a theory of citizenship where "it became the duty of citizens to resist" unconstitutional laws).
91. Afternoon Session, Daily Free Democrat (Milwaukee), Apr. 13, 1854.
92. Id.
93. In re Booth, 3 Wis. 1, 8 (1854). While a state court cannot issue habeas corpus on a federal prisoner today, this was not settled law in 1854.
94. See Rollin C. Hurd, A Treatise on the Right of Personal Liberty, and on the Writ of Habeas Corpus and the Practice Connected with It: With A View of the Law of Extradition of Fugitives 189-90, 190 n.1 (Albany, W. C. Little & Co. 2d ed. 1876).
95. Habeas Corpus Trial, Daily Free Democrat (Milwaukee), June 7, 1854.
96. Habeas Corpus Trial, Daily Free Democrat (Milwaukee), June 9, 1854.
97. Habeas Corpus Trial, Daily Free Democrat (Milwaukee), June 22, 1854.
98. While there was no direct Supreme Court ruling, every northern Justice had already upheld the use of commissioners. See supra note 23 and accompanying text.
99. Habeas Corpus Trial, supra note 74.
100. Id.
101. Habeas Corpus Trial, Daily Free Democrat (Milwaukee), June 6, 1854.
102. Id.
103. Id.
104. Id. ("I do not belong to that school... which seems to teach that the States are to look up to the Departments of the Federal Government, with all the submissive deference with which a serf is to listen to the commands of his master.... [States] must have the power to judge when their sovereign rights are encroached upon, and to adopt measures for their defense.").
105. Id.
106. In re Booth, 3 Wis. 1, 1-2 (1854).
107. Id. at 23-24.
108. Id. at 25.
109. Id. at 34. Justice Smith further asserted that "upon the States rests the immense responsibility of preserving not only their own sovereignty, but the just constitutional powers of the general government."
110. Id. at 35.
111. Id. at 32.
112. Id. at 47-48.
113. Id. at 36-37.
114. Many commentators have simply called the decision nullification or have failed to differentiate the decision from other states' rights conceptions of federalism. See Baker, supra note 9, at 113, 117-18; Potter, supra note 26, at 295. Others have focused on the constitutional power of states to protect the liberty of their citizens.
115. See McManus, supra note 9, at 136. This Note's fundamental point of departure is in arguing that the Wisconsin court advocated state judicial supremacy or, in other words, the power of the state to render a final interpretation of the Constitution.
116. Gerald Gunther, John Marshall's Defense of McCulloch v. Maryland 138-54 (1969) (reprinting Chief Justice Roane's critique of the Marshall Court).
117. 6 The Works of John C. Calhoun 68 (Richard K. Crallé ed., New York, D. Appleton & Co. 1857).
118. Id. at 68-73.
119. In addition to the Wisconsin court's language, the facts of the case also support this interpretation. The Wisconsin court intervened in a federal prosecution under a federal law. Under Chief Justice Roane's theory this would have been indefensible since a state court could not interfere with the judicial proceedings of a separate sovereignty - only Calhoun's theory of state sovereignty justified the court's actions. Moreover, this interpretation is supported by Chief Justice Taney's language in Ableman. See infra note 145 and accompanying text.
120. See Kelly et al., supra note 1, at 207-09. Thomas Jefferson and James Madison, who first developed the theory of states' rights in the famous Virginia and Kentucky Resolutions, also envisioned implementation through state conventions.
121. See id. at 135.
122. Since compact theory vested unitary sovereignty in the states, Justice Smith and Paine took compact theory to its logical extreme by arguing that each department of the state government could conclusively interpret the Constitution. Calhoun took a more moderate approach by arguing that only the people of the states acting through a convention could conclusively interpret the Constitution. It is not entirely clear why Paine and Justice Smith departed from Calhoun on this point, but it is possible that they feared that Wisconsinites would associate a convention with South Carolina's nullification crisis. Vesting the power in the Wisconsin court offered them two additional advantages: first, implementation would be much easier as Justice Smith would need to convince only one colleague on the court rather than a majority of Wisconsin's electorate; second, acting through the court perhaps lent the theory the perception of legal credibility.
123. In re Booth, 3 Wis. 1, 64-66 (1854).
124. Id. at 75-76 (Crawford, J., dissenting). However, Judge Crawford concurred in the judgment. He held that the process served on Booth was inadequate to state a claim under the Fugitive Slave Act. Id. at 86-87.
125. Id. at 101 (Smith, J., concurring).
126. Id. at 122.
127. Id. at 131.
128. See, e.g., William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760-1848, at 228 (1977).
129. See, e.g., Cover, supra note 5, at 154-58.
130. Id. at 153-54, 183;
131. Wiecek, supra note 102, at 212-13.
132. Jones v. Van Zandt, 46 U.S. 215, 231 (1847), aff'g 13 F. Cas. 1040, 1042 (C.C.D. Ohio 1843);
133. see also Cover, supra note 5, at 173.
134. Id. at 189.
135. Professor Cover uses this argument to claim that the Wisconsin court's decision reveals the inherent limits of utopian constitutional theory, as states' rights undermines other antislavery positions, such as slavery in the territories. Id. at 190. But the Wisconsin court embraced states' rights-and thus was limited-only because it knew
136. it faced certain reversal in the Supreme Court. A utopian approach, however, need not have used states' rights if reversal were not an issue.
137. Gerrit Smith to Wendell Phillips, The Liberator (Boston), Mar. 16, 1855, at 1.
138. Speech of Wendell Phillips, The Liberator (Boston), Feb. 1, 1856, at 20.
139. Id.
140. Letters on the Glover Incident, Milwaukee Sentinel, Dec. 13, 1896;
141. see also The Demands of Freedom: Speech of Hon. Charles Sumner, New-York Daily Times, Mar. 10, 1855, at 2.
142. Judge Smith's Decision, Sentiment of the Press, Daily Free Democrat (Milwaukee), June 19, 1854 (reprinting Sheboygan Secretary).
143. McManus, supra note 9, at 88-92.
144. People's Mass State Convention!, Daily Free Democrat (Milwaukee), July 14, 1854. Some antislavery Democrats joined the Republican Party as well.
145. The Habeas Corpus Case, Daily Free Democrat (Milwaukee), Aug. 17, 1854 (reprinting Milwaukee Sentinel).
146. Id.
147. The Charge of Judge Miller, Daily Free Democrat (Milwaukee), Jan. 1, 1855.
148. Judge Miller's Charge, Daily Wis. (Milwaukee), Jan. 16, 1855.
149. The Verdict, Daily Free Democrat (Milwaukee), Jan. 15, 1855. Howard Baker presents a detailed account of the trial and argues that the central issue was the duties and rights of citizenship.
150. See Baker, supra note 9, at 80-111.
151. From Madison, Milwaukee Sentinel, Jan 19, 1855. Prohibiting the use of state jails was a common measure taken by northern states to make enforcement of the Fugitive Slave Act impractical.
152. Morris, supra note 12, at 176.
153. From Madison, supra note 120.
154. Booth and Ryecraft Sentenced, Milwaukee Sentinel, Jan. 27, 1855 (reprinting Madison J.).
155. See, e.g., Booth and Rycraft Aid Meeting, Wisconsin Newspaper (Milwaukee), Jan. 1, 1855 (reporting resolutions from a mass meeting that condemned the federal trial and the Fugitive Slave Act);
156. Feeling of the Country, Daily Free Democrat (Milwaukee), Jan. 26, 1855 (warning that "it would be absolutely unsafe for Judge Miller to travel thro' the South-Western part of the State").
157. Shameful Misrepresentations, Daily Free Democrat (Milwaukee), Jan. 19, 1855.
158. In re Booth, 3 Wis. 157 (1854).
159. See The Prisoner off for Madison!, Milwaukee Sentinel, Jan. 30, 1855.
160. In re Booth, 3 Wis. at 212.
161. The Decision of our Supreme Court, Daily State J. (Madison), Feb. 8, 1855 (reprinting Potosi Republican).
162. The Action of Our Supreme Court, Milwaukee Sentinel, Feb. 7, 1855 (reprinting Janesville Gazette).
163. Right of the Voters to Canvass Opinions of Judicial Candidates on Public or National Questions, Daily State J. (Madison), Mar. 15, 1855 (reprinting Grant Co. Herald).
164. The Election of Orsamus Cole, Daily State J. (Madison), Apr. 11, 1855.
165. Ableman v. Booth, 62 U.S. 506, 512 (1859).
166. See supra note 8.
167. McManus, supra note 9, at 139.
168. Id. at 139-42. Interestingly, Senator Doolittle would side with President Andrew Johnson in opposing congressional reconstruction on the grounds that it was an unconstitutional use of federal power in violation of the rights of the southern states.
169. See Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877, at 178-79, 222, 266 (1988).
170. See Morris, supra note 12, at 177.
171. An Act, Relating to the Writ of Habeas Corpus to Persons claimed as Fugitive Slaves, the Right of Trial by Jury, and to Prevent Kidnapping in this State, Milwaukee Sentinel, Feb. 21, 1857.
172. The Personal Liberty Bill, Milwaukee Wkly. Sentinel, Feb. 25, 1857.
173. McManus, supra note 9, at 143-45;
174. John Bradley Winslow, The Story of a Great Court 115 (1912).
175. 62 U.S. 506 (1859). The Supreme Court considered Booth's release from federal custody following Commissioner Smith and Judge Miller's trials together.
176. Id. at 514.
177. Id. at 521.
178. Id. at 524.
179. '45 Id. at 520. Recall that Paine and Justice Smith had believed dual sovereignty would collapse into unitary sovereignty vested in the federal government because the Supreme Court, as part of the federal government, could not be trusted to reign in federal power. See supra notes 84-86 and accompanying text.
180. Id. at 523.
181. Id. at 524.
182. Id. at 526.
183. Kelly et al., supra note 1, at 238, 278-79;
184. see also Campbell, supra note 20, at 47;
185. Stanley I. Kutler, The Supreme Court and the Constitution: Readings in American Constitutional History 110 (3d ed. 1984);
186. Carl Brent Swisher, Roger B. Taney 529-31 (1935);
187. Samuel Tyler, Memoir of Roger Brooke Taney 392 (Baltimore, John Murphy & Co. 1872).
188. The Supreme Court of the U.S., Milwaukee Sentinel, Apr. 2, 1859.
189. State Sovereignty Maintained, Racine Wkly. J., Mar. 21, 1859.
190. Milwaukee News, Mar. 13, 1859 (reprinting Daily Free Democrat).
191. The Moral of the Late Election, Milwaukee Sentinel, Apr. 12, 1859.
192. Ableman v. Booth, 11 Wis. 498, 532 (1859).
193. The Booth Case Before the Supreme Court, Wis. St. J. (Madison), Mar. 6, 1860.
194. Ableman, 11 Wis. at 500.
195. Id. at 532. Justice Dixon was appointed only because he was thought to be a supporter of states' rights, and his vote thus outraged many Republicans. See McManus, supra note 8, at 182-83.
196. Carter, supra note 10, at 165.
197. Editorial Correspondence, Daily J. (Racine), Mar. 7, 1860.
198. Id. When the captain of one such company refused to obey the order, calling it a "clearly illegal" act of treason, Governor Randall responded by disbanding his company. Proclamation of the Governor-The Milwaukee Union Guard Disbanded, Wis. St. J. (Madison), Mar. 7,1860;
199. see also Wis. St. J. (Madison), Mar. 8, 1860.
200. Wisconsin Legislature, Wis. St. J. (Madison), Mar. 8, 1860.
201. See Wis. St. J. (Madison), Mar. 5, 1860 (urging the Governor to release Booth under the authority of the Wisconsin court's decision in In re Booth).
202. How Booth was taken out of the Custom House, Wis. St. J. (Madison), Aug. 2, 1860 (reprinting Daily Wis.).
203. Booth at the State Prison, Ripon Wkly. Times, Aug. 10, 1860.
204. See S. M. Booth at Ripon!, Ripon Wkly. Times, Aug. 10, 1860.
205. Peoples' Mass Meeting, Ripon Wkly. Times, Aug. 10, 1860. The meeting also appointed a committee to ask the U.S. marshals to leave the city. Id.
206. Another Attempt to Arrest S. M. Booth, Ripon Wkly. Times, Aug. 31, 1860.
207. Re-Arrest of Booth, Wis. St. J. (Madison), Oct. 10, 1860. Booth's sentence was remitted by President Buchanan in March of 1861. S. M. Booth Released, Ripon Wkly. Times, Mar. 15, 1861.
208. The selection of United States Senator Doolittle is an apt example. See supra note 136 and accompanying text.
209. To Nominate, or Not to Nominate!, The Debate in the Republican State Convention, Wis. St. J. (Madison), Mar. 2, 1860.
210. Letter from Judge A. Scott Sloan, Wis. St. J. (Madison), Mar. 15, 1860.
211. See Voters, to the Polls!, Daily J. (Racine), Apr. 3, 1860;
212. see also McManus, supra note 9, at 185; Winslow, supra note 140, at 141-42.
213. But see Baker, supra note 9, at 165, 171-72 (arguing that Wisconsinites were forced to abandon states' rights in the context of southern secession following the election);
214. McManus, supra note 9, at 190 (arguing that, beginning in 1861 and continuing after the war, Republicans abandoned states' rights and expanded national power in order to better serve the "goal of protecting and expanding individual liberty");
215. Ranney, supra note 7, at 112 (arguing that Wisconsinites abandoned the doctrine to appease a seceding South).
216. See, e.g., The Judicial Election, The Milwaukee Daily Sentinel, Mar. 28, 1859 ("Step by step, and year after year, has the Slave Power made its advances and aggressions. Originally weak, it now controls every Department of the General Government.").
217. Democrats had long made this point. See, e.g., The Opinion of Judge Smith, Daily Wis. (Milwaukee), June 8, 1854 ("[W]henever a thorough anti-slavery man is placed in the presidential chair, the same power which is now used for the enlargement of Slavery, can then be used for the strengthening of Liberty.").
218. See To Nominate, or Not to Nominate!, supra note 170 ("I am unwilling that the Republican Party of Wisconsin should furnish any authority for such disloyalty, or should lend any respectability to it.").
219. See David M. Potter, Lincoln and His Party in the Secession Crisis 2 (1942). Because the Democrats could not agree on a candidate, the presidential election of 1860 was essentially split into two different races. In the South, Democrat John Breckinridge ran against John Bell of the Constitutional Union Party, which was a successor of the Whig Party.
220. In reference to Booth's arrest, the Chicago Press and Tribune alleged that "the Democratic [P]arty, already in agony of death, want nothing so much as civil war, to give color and substance to their threats of disunion." How it Looks to Outsiders, Wis. St. J. (Madison), Mar. 12, 1860 (reprinting Chi. Press & Trib.).
221. Lincoln was chosen partially because of his moderate antislavery stance. Potter, supra note 177, at 32-35.
222. See Ranney, supra note 7, at 112.
223. See, e.g., Cong. Globe, 36th Cong., 1st Sess. app. at 89 (1860) (statement of Sen. Robert Toombs) [hereinafter Toombs]; Benjamin H. Hill, Unionist Speech (Nov. 15, 1860), in Secession Debated: Georgia's Showdown in 1860, at 83 (William W. Freehling & Craig M. Simpson eds., 1992).
224. See Ranney, supra note 7, at 112.
225. Morris, supra note 12, at 187.
226. Ex parte Bushnell, 9 Ohio St. 77, 184-85 (1859).
227. Morris, supra note 12, at 187-88.
228. Bushnell, 9 Ohio St. at 194-97.
229. Id. at 221-29, 256.
230. Morris, supra note 12, at 182, 186-88.
231. Cf. id. at 186-88.
232. See Fehrenbacher, supra note 13, at 417-595.
233. The Presidential Question, N.Y. Times, Apr. 3, 1860, at 5 (reporting a Democratic political speech); see also An Important Decision by the Supreme Court of the United States, Daily News (Milwaukee), Mar. 15, 1859 (reprinting Detroit Free Press).
234. The Last Stride of the Supreme Court, Milwaukee Sentinel, Mar. 24, 1859 (quoting the N.Y. Evening Post);
235. see also, e.g., The Wisconsin Legislature on the Recent Decision of the U.S. Supreme Court, Milwaukee Sentinel, Mar. 24, 1859 (reprinting Detroit Trib.) (praising Wisconsin for refusing to "surrender her State Sovereignty" and calling the Supreme Court a "bench of slave holders"). The New York Tribune asserted that "[t]his decision is equivalent to a denial of the writ [of habeas corpus], as an instrument of protection against federal persecution or tyranny . . . . Any State of this Union that will yield to such an interpretation of its political rights as this is only fit to be enslaved. The spirit of freedom spurns it with contempt." Nullification Proclaimed, Milwaukee News, Mar. 23, 1859 (reprinting Detroit Free Press quoting the N.Y. Trib.).
236. Toombs, supra note 181, at 89.
237. The Decision Against the Fugitive Slave Law, The Richmond Enquirer, June 15, 1854.
238. See, e.g., Toombs, supra note 181, at 89; Hill, supra note 181, at 83.
239. See Toombs, supra note 181, at 88-90 (condemning the Wisconsin court for violating the Constitution and warning that he had "no doubt [that Republicans] will treat the Constitution in the same way if they get power here"); Hill, supra note 181, at 86 (warning that the Republicans, including Republican judges, had a history of violating the Constitution and were "seeking to secure the other two departments-the legislative and judicial").