A few weeks ago Mason, Ohio voted to make itself a new kind of “sanctuary city” by banning abortions and threatening to punish anyone who aids or abets an abortion within the city limits. Mason is not alone—it is part of a growing movement of local governments passing ordinances declaring themselves “sanctuaries for the unborn.” On their face, these ordinances seem almost silly. Towns like Mason or Lubbock, Texas clearly don’t have the legal authority or capacity to countermand the Supreme Court. (The threat to a woman’s right to choose is exigent and immediate, but it’s coming from the Court itself, not small towns in Ohio).
But just because these sanctuary ordinances are performative expressions of small-town morality does not mean that we should dismiss them. The local governments that are adopting these ordinances are acting in a long tradition of local engagement with (and resistance to) national political disputes. Not only are these ordinances in the same family as other conservative forms of resistance ordinances (requiring townspeople to be armed, nullifying state vaccine mandates, and banning critical race theory), they are also in the same family as liberal resistance ordinances from the familiar (immigration sanctuary ordinances) to the less familiar (condemning the January 6 Insurrection or calling for an end to the embargo on Cuba).
As different as all of these ordinances are on the axes of politics and local power, they are unified by a central question: what the heck do these local governments think they are doing? To put it slightly more artfully: what meaningful role can or should local governments play in resistance movements and struggles for social change? This is the central question of my recently published article in the Cardozo Law Review: “An Outrage Upon Our Feelings”: The Role of Local Governments in Resistance Movements. I answer the question as it emerges today by looking to the past. Specifically, I unearth and analyze a set of local ordinances that were passed to condemn and nullify the infamous Fugitive Slave Law of 1850.
The Fugitive Slave Law of 1850 was infamous from the moment it was introduced. Passed as part of a questionable compromise intended to stave off the growing threat of Southern secession, the law created a new and streamlined federal system designed to quickly “return” to slavery the human beings that slaveowners claimed as property. Not only was the law patently biased against alleged fugitives in its processes, but it threatened anyone who stood in the way of its unfair processes with criminal punishment. Its monstrosity was such that it was incredibly unpopular from the moment it was enacted in September of 1850. All through that fall the North erupted in mass meetings opposing the law.
Local governments were neither the catalysts for nor the protagonists of this movement. But some local governments wanted to get in on the action. Especially in Massachusetts, many towns saw themselves as part of a long tradition of local resistance to centralized oppression. They told proud stories of their towns as heroic actors in the struggle that led up to the Revolutionary War and they saw resistance against the Fugitive Slave Law as consistent with that heritage. And so, amidst the uprisings after the law was passed, a number of towns and cities met in town meetings and city councils to pass resolutions condemning the law and proclaiming their alignment with the growing wave of antislavery politics.
As these local governments stepped into the movement and sought to resist the new law, they faced a set of questions about whether and how they could actually effectively resist. In many small towns, opposition to the law was purely theoretical because there was almost no chance that a fugitive or alleged fugitive would ever come through the town. In bigger cities like Chicago, while it was conceivable that the city authorities could meaningfully interpose themselves between federal authorities and their citizens, no such confrontation was ever really contemplated.
If the towns couldn’t (or wouldn’t) offer substantial protection to fugitives from enslavement, what did they hope to accomplish? One possible answer is that it is better to speak than be silent. Even if you agree (as I do) that it is better to speak up than stand by, it’s important to note just how limited this goal is. The “pure rhetoric” explanation implicitly accepts the premise that local governments are powerless to affirmatively provide the sanctuary they seem to offer. This has potentially serious costs. Since proclaiming sanctuary suggests a promise of physical protection, there is a dissonance and disappointment when the local governments cannot deliver on that promise.
This dissonance was a problem in the 1850s and it remains one today. It was easy for local governments to draft resolutions that made promises that their police powers couldn’t keep. When Weymouth, Massachusetts exhorted all enslaved people in the South to break the chains of their bondage, the town was not realistically offering sanctuary to anyone who could make their way to the south shore of Massachusetts. In Chicago, the city’s promises were so clearly empty that a private vigilance committee was organized to protect citizens from kidnapping where the city police would not.
Of course this dissonance between rhetoric and power is still with us. In the context of immigration, some of the small towns that have declared themselves as sanctuaries are hardly hotspots for ICE enforcement. Others, (like Chicago) have promised more sanctuary for undocumented residents than they have been able or willing to deliver. The case is roughly the same for cities and towns claiming to offer sanctuary for the unborn.
And so, even accepting that it is better for local governments to speak than to be silent, there are real costs when local governments simply speak up for the sake of being heard. Not only do they potentially do catastrophic harm to any residents who acted in reliance on promises of sanctuary, but they undermine their real strategic capacity by turning local resolutions into an empty sideshow.
But empty rhetoric is not the only option for local governments who want to be more than bystanders in resistance movements. If cities and towns cannot stand between their residents and policies they abhor, they can make civic space for the radical imaginations that fuel social movements resisting those policies. The example from the past that I offer is Acton, Massachusetts. While some neighboring towns thumped their chests and many others remained silent, the town meeting of Acton took a nuanced and radically pragmatic position. They did not promise to nullify the Fugitive Slave Law or to ensure the safety of any alleged fugitive within the town. Rather, the town meeting promised to hold civic space for resistance to the law. The resolutions promised to support political organizing against the law and construed the town as a place where radical imagination could be nourished in the context of participatory self-government.
In Acton’s radically pragmatic resolutions, there is a model for cities and towns that seek to work together with movement actors to resist oppression and remake our civic life. Just as movement organizers can knit together individuals whose shouts of rage would be inaudible alone into a chorus that demands attention, so too can cities and towns join voices with that chorus. More than that, cities and towns are places where generative civic engagement can happen. By making space for the chorus and by amplifying the voices speaking in those spaces—and by letting go of the desire to be the protagonists of the story—cities and towns can be essential elements of the kind of generative participatory democracy that any sincere movement relies on.