Ableman v. Booth and United States v. Booth

On 27 May, while the state supreme court was on vacation, Booth applied to Associate Justice Abram Smith for a writ of habeas corpus. Booth asked to be released because he was being held under an unconstitutional law. Justice Smith ordered Booth's release on 7 June. Smith asserted the state's right to intervene, and declared the Fugitive Slave Law unconstitutional because it denied trial by jury to fugitive slaves, thus taking their liberty without due process of law. In July, at Marshall Ableman's request, the Wisconsin Supreme Court reviewed Justice Smith's decision and upheld it. Ableman appealed this decision to the U.S. Supreme Court.

In January 1855, while this appeal was pending, Booth was rearrested on a new warrant from the U.S. District Court for Wisconsin. He was tried by jury, convicted, sentenced to one month in jail, and fined $1,000. Once more Booth appealed to the Wisconsin Supreme Court. On 3 February, the court freed him for a second time, again ruling that he was illegally confined under an unconstitutional law. It declared that the state, as sovereign, had the power to protect its citizens against a wrongful federal law.

Without using the word, the Wisconsin court had advanced an extreme statement of the "nullification" doctrine--the theory that a state could render congressional laws null and void within its territory. John Calhoun of South Carolina had originally advanced this nullification doctrine in 1828. Four years later, a state convention had declared the tariffs of 1828 and 1832 null and void in South Carolina. Thus nullification is sometimes considered a Southern state's right. In this case, however, it was the northerners of Wisconsin that nullified a federal law (the Fugitive Slave Law) because of their anti-slavery convictions.

The U.S. attorney for Wisconsin appealed regarding Booth's second release, and the Supreme Court combined the two Booth cases into one. Although the defiant Wisconsin court refused to send its records to Washington, the U.S. Supreme Court obtained a copy by subterfuge.

Stung by the criticism over its Dred Scott decision, the Court delayed hearings on the Booth cases until January 1859. U.S. Attorney General Jeremiah S. Black appeared for the United States and, nominally, also for Ableman, who had long since retired from the office of federal marshall. No one appeared for Booth and the state of Wisconsin, who did not recognize the Supreme Court's authority in this case.