Say It Loud! by Randall Kennedy

Author:Randall Kennedy [Kennedy, Randall]
Language: eng
Format: epub
Published: 2021-09-07T00:00:00+00:00

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For years I offered this account of the battle over Anthony Burns as a lecture to judges who participated in symposia at Harvard Law School sponsored by the Federal Judicial Center. My aim was to make them confront a conflict between law and justice. It did not require much prompting for them to recognize that distinction as an all-too-familiar presence. Several judges confessed, for example, to feeling disgust, including self-disgust, when sentencing defendants to outrageously excessive punishments required by legislation. A notable feature of the judges’ response was their nearly uniform rejection of judicial nullification as a permissible mode of resistance to the Fugitive Slave Act. They applauded hiding runaways, purchasing their freedom, or even forcibly seizing runaways from owners or federal authorities. They drew a line that they refused to cross, however, when I asked them about the permissibility of a commissioner lying to foil the Fugitive Slave Act. They rejected the propriety of a commissioner deciding deceitfully that a runaway did not match an owner’s description. They eschewed the morality of judicial nullification. Were their renunciations of the permissibility of judicial sabotage candid expressions of their actual position? Or were they also seeking to signal to one another (and all other onlookers) the depth and intensity of their fidelity to conventional notions of judicial integrity, even in the grip of an extreme crisis such as that brought about by the Fugitive Slave Act? Our discussions into that terrain did not venture as deeply as I would have liked.

Largely absent, too, from those discussions was the recent controversy most strikingly analogous to that generated by the federal fugitive slave laws: the dilemma posed by U.S. immigration policy.54 Federal immigration law requires or permits treating refugees fleeing horrific circumstances in their home countries in ways that are morally unacceptable. The worst manifestation of this mistreatment thus far has been the notorious separation of children from their parents. Just as antislavery activists rejected the legitimacy of federal laws that criminalized efforts to assist slaves seeking to flee bondage, so, too, are activists rejecting the legitimacy of federal laws that criminalize efforts to aid migrants in fleeing political oppression, economic misery, and social chaos. Harriet Tubman and other conductors of the Underground Railroad self-consciously defied federal law to spirit runaways to freedom in northern states, Canada, or England, calling upon a higher law to justify their defiance of federal authority. Today the Sanctuary Movement invokes “God’s law” or secular equivalents to justify actions that also violate federal statutes. Congregants in hundreds of houses of worship across the country have offered shelter and other sorts of support to fleeing migrants. In 1984 federal authorities pursued an undercover investigation, named in appallingly bad taste Operation Sojourner, that nabbed priests, a nun, and a minister for violating criminal anti-harboring provisions. In 2018, forty-five hundred people were prosecuted for such infractions.

In antebellum America, “free” jurisdictions enacted “personal liberty laws” that were designed to offer some protection to people at risk of being apprehended by slave catchers.

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