For all their vaunted promise, contemporary sanctuary laws still sit within this broader history, continuing to distinguish the legitimate immigrant from the criminal one as a way to deny universal protections. In so doing, these laws follow a long-established pattern of juridical protections that only ever mitigate state harm rather than yield full safety. From the 19th-century Underground Railroad to the sanctuary movement of the 1980s, true security has always been more likely to be crafted from below rather than granted from above—a history that offers critical instruction for our own struggles for sanctuary today.
IN MANY WAYS, the Fugitive Slave Acts, a pair of federal laws that sought to help recapture enslaved people fleeing bondage, and the responses they precipitated, are direct ancestors of the present-day federal round-up of immigrants and the ensuing reactions. The first Fugitive Slave Act, which Congress passed in 1793, endowed slaveholders with the authority to capture fugitives even in states where slavery was illegal. Under pressure from abolitionists, several Northern states responded to this infringement of territorial sovereignty by passing Personal Liberty Laws, which outlawed the forceful seizure of fugitives, and erected legal barriers against compelling their return. An 1842 Supreme Court ruling declared these laws unconstitutional, even as it allowed states to abstain from enforcing the Fugitive Slave Act itself. “Without the assistance of the local authorities, the 1793 Fugitive Slave Act became practically unenforceable in these states,” the legal historian James Kraehenbuehl writes.
But, while important, such legal disputes by no means formed the boundary of abolitionists’ struggle, especially amid a constant federal onslaught. In 1850, Congress passed a second Fugitive Slave Act, which attempted to ensure local compliance through a series of increasingly draconian measures—including imposing fines and imprisonment on citizens who obstructed the capture of fugitive slaves. As the historian Manisha Sinha writes, the abolitionist organizer Jermain Loguen, who was himself formerly enslaved, responded to the new law by saying: “It outlaws me, and I outlaw it.” In the wake of its ratification, Loguen joined with others to expand the Underground Railroad, a network of secret routes and safe houses that had been offering passage to people fleeing enslavement since the 1780s. The Railroad’s organizing principle was one that the sociologist W. E. B. Du Bois named in his 1935 book Black Reconstruction in America: Freedom would not be bestowed on enslaved people by good-willed states. “The North did not propose to attack property,” Du Bois wrote. “It did not propose to free slaves.” Instead, it was the “dark proletariat”—the cohorts of racialized laborers whose movements are coerced and controlled—who demanded and created their own freedom.