Federation, Individual Rights and State Borders

Guest Blogger

This post was prepared for a roundtable on Federation and Secession, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Rebecca E. Zietlow

Sandy Levinson is always urging constitutional scholars to think about the parts of the constitution that we usually don’t talk about, including the parts that set up the structure of our government. In that spirit, my post focuses on Article IV, which governs the relationships between the states. When we think about how individual rights fit into our federated system, we usually think in terms of federal-state relations. The Fourteenth Amendment recognized federal rights that are enforceable against state governments, making the federal government the principal protector of our individual rights. We don’t usually think about the relationship between states because state borders are not relevant to the enforcement of federal rights.

In the absence of federal rights, however, states are entirely free to regulate as they choose. We are currently witnessing this phenomenon in the wake of the Supreme Court’s opinion in Dobbs v. Jackson Whole Women’s Health Organization that there is no right to choose an abortion in the Fourteenth Amendment. Lately I have been thinking a lot about Article IV because of my work on the constitutional activism of fugitives from slavery, which strained principles of interstate comity and created tensions that eventually led to the secession of the confederate states. Since Dobbs, Article IV is relevant again as people seeking rights are crossing state borders and testing principles of interstate comity.

Under Article IV, states are required to give full faith and credit to public acts of other states; states must deliver up persons fleeing from justice to the state from which they fled; and states are prohibited from discriminating against citizens of other states in matters related to their Privileges and Immunities. Article IV reduces the importance of state borders, which generally have little meaning in our day to day lives. An Ohio resident does not need a passport to travel into Michigan. Indeed, an Ohio resident might not even notice when they cross the border into Michigan (unless they are on an interstate highway with a welcoming sign). Article IV thus enforces principles of interstate comity which are intended to strengthen our union and reduces the likelihood that states will want to secede.

Prior to the Civil War, Article IV played a central role in battles contesting the scope and existence of individual rights. Disputes arose over the meaning of the Article IV Privileges and Immunities Clause, and whether free Black people had any rights under that clause. Free Black people claimed that they were citizens of free states with the right to travel and other fundamental rights. Their antislavery constitutionalist allies agreed. However, the rights of free Black people to travel across state borders were limited not only by laws of slave states, but also some free states which created exclusionary borders and prohibited free Black people from entering their states.

The fiercest Article IV battles in the antebellum era were fought over the Article IV fugitive slave clause, which required states to “deliver up” fleeing persons “bound to service or labor” in another state – also raising questions about the freedom of movement and fundamental human rights. For Black people in the antebellum era, state borders could mean the difference between slavery and freedom, between being treated as a human being or someone else’s property right. Fugitives from slavery crossed state borders to change their legal status and assert their human rights. The borders between slave and free states were the fora for contesting the existence and scope of those rights.

In free states, antislavery activists argued that their state borders had a tremendous legal significance. They asserted the Freedom Principle—that enslaved people became free when entering their states. Free Black activists and their allies created vigilance societies and the Underground Railroad to protect fugitives who escaped from states in which slavery was legal.

Slaveholders downplayed the significance of state borders. They claimed that once a person was enslaved, that person continued to be so for life. Slaveholders also cited Article IV, arguing that the Fugitive Slave Clause nationalized the issue of slavery, erasing the significance of state borders. With the 1850 Federal Fugitive Slave Act Congress agreed and made it a federal crime to provide help to anyone who was fleeing from slavery. The 1850 FSA federalized the law of slavery, reducing the importance of state borders. Not only fugitives from slavery, but free Black people, could no longer benefit from the relative safety provided by the borders of the free states in which they lived. Many fled across the United States border to Canada.

In Dred Scott v. Sanford, the Supreme Court cemented the nationalization of slavery into constitutional law and held that even free people of African descent could not be state or U.S. citizens. The Dred Scott ruling deprived not only enslaved people, but also free Black people of fundamental rights including the right to travel across state borders. After the Civil War, the Reconstruction Congress overturned Dred Scott. The Fourteenth Amendment declared all persons born in the United States to be citizens with fundamental human rights, including the privileges or immunities of citizenship. One of those privileges or immunities is the right to travel.

After the Civil War, the Reconstruction Era 14^th Amendment largely superseded Article IV, establishing federal rights enforceable against states, recognizing formerly enslaved people as citizens with privileges or immunities of citizenship and other rights that are enforceable against states. Under the 14^th Amendment, fundamental rights are uniform throughout the country, reducing conflicts between states over the existences and scope of rights. Absent the existence of federal rights, however, states can regulate as they choose. Rights will vary from state to state, and the possibility of exit and right to travel between states is crucial for the enforcement of rights.

Article IV thus has new relevance to battles over rights today. After Dobbs, States can regulate abortions however they wish. Some states have enacted complete bans, and many states have enacted laws severely restricting abortion. Other states are enshrining the right to abortion into state constitutions, and enacting statutes protecting rights. As a result of the Supreme Court’s ruling in Dobbs, the individual liberty and reproductive autonomy of women and other pregnant people depend on the state in which they live. Again, state borders determine the scope of freedom of people in this country—this time their reproductive freedom.

People who live in over half of the states in this country must now cross state borders in search of reproductive liberty. As in the antebellum era, activists are mobilizing to help people seeking abortions, engaging in public demonstrations and political action. Supporters of abortion rights are also providing clandestine support for people seeking abortions, providing transportation, lodging and financial aid for those crossing state borders in search of abortion rights.

Today, not only Article IV but also the Fourteenth Amendment guarantees the right to travel across state borders. However, antiabortion activists have proposed legislation which would prevent people from crossing state borders to obtain abortions and prohibit other people from “aiding and abetting” people who are trying to do so. That legislation would not only deprive people seeking abortions of their reproductive liberty, but also their right to travel, undermining a fundamental principle of interstate comity. These laws would also infringe on the freedom of speech of abortion rights activists and subject them to the risk of liability if they helped people seeking abortions to travel across state borders or help them in any other way.

The post-Dobbs era thus turns conventional wisdom about individual rights are enforced in our federation. States, not the federal government are the primary protectors of abortion rights. State borders, not federal-state conflicts, are the fora for battles over reproductive liberty. The right to travel across those borders is again essential to enforcing fundamental rights, as are the rights of people assisting those who need to cross those borders.

The shadow of the antebellum era also looms large over the future of reproductive liberty in our country, as opponents of abortion are now calling for a federal ban on the procedure. Like the 1850 Fugitive Slave Act, federal legislation banning abortion would escalate conflicts over rights, force abortion rights advocates further underground, and force people to leave the country to exercise whet they believe to be their fundamental rights. In addition, the ultimate goal of many anti-abortion advocates is to persuade the Supreme Court that a fetus is a person with rights under the Fourteenth Amendment. Like the Dred Scott decision, such a ruling would remove the issue of abortion rights from the political process and further inflame our polarized political landscape.

If our federation is like a family, as Sandy and other participants in this conversation have suggested, principles of interstate comity are the ties that bind our family together. Today, as in the antebellum era, battles over state borders and interstate comity are further dividing our already polarized nation. Whether our conflicts today will escalate to the point of secession remains to be seen. 

Rebecca E. Zietlow is Associate Dean for Academic Affairs, Assistant Dean for Diversity, Equity, and Inclusion, Distinguished University Professor, and Charles W. Fornoff Professor of Law and Values. You can contact her at rebecca.zietlow@utoledo.edu.