New book highlights Joshua Glover's escape as a key incident in constitutional history

A state government's elected and legal officials defy the federal government on the thorniest controversial issue of the day, battling for supremacy in the courts.

A contemporary reader might assume that's Texas or Iowa's current tussle with federal authorities over immigration.

But in the culminating chapter of legal scholar Alison L. LaCroix's new book, the state is Wisconsin, the time is the turbulent period right before the Civil War began, and the precipitating incident is a famous moment in Milwaukee history: the capture of escaped slave Joshua Glover, followed by anti-slavery demonstrators breaking him out of a Milwaukee jail in 1854.

"Between 1854 and 1861, Wisconsin was the site of one of the most remarkable confrontations among federal, state, and local levels of government in the entire interbellum period," LaCroix writes in "The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms" (Yale University Press).

"The crisis that shook Wisconsin and the nation in the 1850s was important because it involved more forceful claims of states' rights and a more effective and consequential demonstration of state nullification of federal law than any previous events in the nation's history," LaCroix writes.

The Glover events would eventually lead to the U.S. Supreme Court. In Ableman v. Booth (1859), SCOTUS ruled that federal courts had final authority over cases that grew out of the Constitution and federal statutes, and states could not overturn those decisions or nullify federal law.

LaCroix, a Shorewood High School graduate, is a law professor at the University of Chicago Law School as well as a member of the university's history faculty. Writing for general readers as well as scholars, LaCroix retells the Glover story in significant detail, creating a vivid picture of its tumultuous events. She also explains how Wisconsin's battle over the Fugitive Slave Act of 1850 illuminates today's conflicts between state and federal governments.

Eager to embed her constitutional history and analysis in a narrative that would draw readers in, LaCroix took pains to research physical details for her book. When she presented a draft chapter, someone jokingly said to her, "I thought you were going to tell us what color the wallpaper was."

"I tried to find out as much as I could," she said. "That's important."

She spent countless hours with old Milwaukee city directories. The onset of the COVID-19 pandemic, when she was working on the Glover chapter, also meant she had time to drive to Milwaukee and walk the streets where these historic events took place, and to imagine the rescued Glover escaping from the jail over a bridge to freedom.

Breaking Joshua Glover out of captivity

After escaping a slave plantation in Missouri, Glover settled in Racine, which LaCroix notes was "famous as a stronghold of antislavery sentiment." But on March 10, 1854, a posse of white men, including his former slaveowner and two deputy U.S. marshals, arrested him after a struggle that left Glover's head bleeding. This capture was legal under the Fugitive Slave Act, even across state lines in a free state like Wisconsin. The former slaveowner had procured the required federal warrant to recapture Glover.

Fearing hostile action in Racine, Glover's captors deposited him in the Milwaukee jail. Meanwhile, Glover's friends and slavery opponents used a recent invention, the telegraph, to get word of the incident to potential allies in Milwaukee. In addition to the moral horrors of slavery, LaCroix points out that "for many observers in Wisconsin, the problem was that mere sister states — equals in the jurisdictional hierarchy — were arrogating to themselves the power to dictate their own state's internal affairs."

LaCroix writes that a delegation of 100 men, including the Racine sheriff, took a steamboat up Lake Michigan to Milwaukee, with warrants to arrest the people who had captured Glover. Meanwhile, abolitionist Sherman Booth, editor of the Milwaukee Free Democrat, was whipping up support for the captive. In a telling detail, LaCroix notes that 15 years earlier Booth, then a Yale student, may have been radicalized when he was hired to teach English to the formerly enslaved Africans of the Spanish ship Amistad, who were in a New Haven jail. Eventually, a famous Supreme Court decision freed them.

Another key detail: There was no separate federal jail in Milwaukee then, so Glover was put in the county jail. "Multiple layers of government — federal, state, and county — occupied the same physical space," creating a jurisdictional mess, LaCroix notes.

To oversimplify LaCroix's vivid account, writs were sought, handbills distributed, speeches made. The Racine delegation and Milwaukee activists converged on the jail, where they broke Glover out and fought off marshals' efforts to re-recapture him. The impromptu battering ram? A piece of timber apparently left over from the construction of the Cathedral of St. John, where more than a century later historian LaCroix would marry her husband.

Via the Underground Railroad, Glover eventually arrived in Ontario, Canada, where he lived until his death in 1888.

Booth was arrested and charged with violation of the Fugitive Slave Act for abetting Glover's escape, leading to multiple court cases with varying results until the final Supreme Court decision.

Contesting federal supremacy

LaCroix has referred to the interbellum years between the War of 1812 and the Civil War as "the flyover country of constitutional history," a pithy phrase that only a Midwesterner could have conjured. No consitutional amendments were passed during that period. But, she emphasizes, people's understanding of constitutional law continued to develop and change during those years.

"Debates about American law and politics during this period focused unceasingly on the question of what union meant — in particular, what the proper structure of governmental authority was in the adolescent American union," she writes in the introduction to her book. "The puzzle was how the system should respond to conflicts among local interests and collisions among federal, state, municipal, and other authorities."

LaCroix argues that "originalist" and "textualist" interpretations of the Constitution are "deeply ahistorical." Specifically, her book pushes back against the narrative that "constitutional law consists only of what the text of the Constitution says."

"Federal supremacy was contested, stretched, and challenged throughout the interbellum period," she said in a Project Syndicate interview earlier this year, drawing a parallel between that time and federal-state conflicts that took place during the Civil Rights era of the mid 20th century.

We tend to think today of states' rights primarily as conservative or right-wing arguments, but that is not inherent in the Constitution, LaCroix noted in a recent interview. Wisconsin's grievance about the Glover incidents and the Fugitive Slave Act was that "both the federal government and other states are invading us," and the federal government had been "captured" by "a minority group" (i.e., the pro-slavery faction), though it was a minority group that controlled Congress and the federal courts.

This article originally appeared on Milwaukee Journal Sentinel: New book highlights Joshua Glover's escape as a key incident in constitutional history