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Editorial: ‘Welcoming’ ordinances reflect a long and familiar American struggle

  • Susan K. Johnson, of Lebanon, pickets in favor of the Welcoming Lebanon Ordinance outside the Ward 3 polls at AVA in Lebanon, N.H., Tuesday, March 10, 2020. (Valley News - James M. Patterson) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.

Published: 3/21/2020 10:10:13 PM
Modified: 3/21/2020 10:10:10 PM

Voters in three communities in the heart of the Upper Valley — Hartford, Norwich and Lebanon — this month endorsed measures designed to afford protections to undocumented immigrants in the face of aggressive enforcement actions by the Trump administration. Residents of a fourth, Hanover, seem likely to vote on a similar policy later this spring.

The votes in Hartford and Norwich were advisory, meaning that the measures would need to be ratified by the selectboards in both towns before going into effect. The vote in Lebanon was binding, and the ordinance will take effect Jan. 1, although it can be amended before then by the City Council.

Although the ordinances and policies adopted differ in some respects, a common element is a provision prohibiting municipal officials from sharing immigration information with federal authorities, unless it is necessary for the investigation of a non-immigration-related felony. While this prohibition directly contravenes two federal laws, legal opinions sought by Hartford and Lebanon officials point out that those laws have been struck down as unconstitutional by federal courts in several jurisdictions recently. The U.S. Supreme Court has not yet ruled on the question.

Opponents of the measures have focused on this issue in particular, arguing that individuals and the communities they constitute cannot pick and choose which laws to obey.

The question of whether to submit to unjust laws or resist them is not new to American life. It was at the center of the conflict that led to the Civil War, a story brilliantly related by Andrew Delbanco, professor of American studies at Columbia, in his 2018 book, The War Before the War. The subtitle amplifies his point: Fugitive Slaves and the Struggle for America’s Soul from the Revolution to the Civil War. Time and space do not permit doing full justice to his argument, but a bare outline will perhaps suffice to make the point.

The U.S. Constitution, as written in 1787 and subsequently adopted, contained an infamous clause under Article IV, section 2, providing that, “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom Service or Labour may be due.” In other words, enslaved people who managed to flee to the free states of the North had to be returned to their former condition in the slave states of the South.

But as the Constitution provided no mechanism to compel their return, the South in 1793 successfully secured from Congress a law intended to enforce the constitutional provision, although, Delbanco notes, the federal government at that point remained too weak to do so.

Over a subsequent period of several decades, Northern states, where anti-slavery sentiment was growing, adopted “personal liberty” laws that impeded enforcement, including guarantees of jury trials for those accused of being fugitives and barring state officials from assisting in returning them to bondage.

Finally, in 1850, Congress passed the Fugitive Slave Act, which not only denied accused fugitives the right to challenge their detention in court — the most fundamental guarantee in the Anglo-American legal tradition, habeas corpus — but also made it a crime to shelter a fugitive and compelled local authorities to assist slave owners in recovering their human property.

The result was that many people in the North were confronted with a conflict: whether to obey a law they found morally objectionable, or to follow conscience and aid fugitive slaves in their desperate bid for freedom. Delbanco’s account of how this played out is nuanced, but he makes the point that the Fugitive Slave Act crystallized for people in the North just how abominable the institution of slavery was, and thus set the stage for the war that abolished it.

As an aphorism quoted by Delbanco has it, while history does not repeat itself, it does rhyme. It is not hard to hear the echoes of that rhyme in the current conflict over undocumented immigrants, who in many cases also are denied basic legal protections and whose flight to freedom has strong parallels to that of enslaved people 170 years ago.

With the benefit of historical hindsight, it is easy to think that we all would have been on the side of human rights and liberty back then. But then as now, there was also a strong current of thought that even when the demands of justice conflict with the law, the law must be respected while it is in effect.

So there’s always a choice. In our view, a significant number of Upper Valley residents have made in recent weeks a morally inspired one.




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