There’s no record of any congressional debate on the Insurrection Act, thus preventing those who attempt to uncover its origins from corroborating what its enactors might have been thinking when they passed it. The Act, however, does have an inescapable context, one that overwhelms oft-cited references to white citizens patriotically resisting heavy taxation during the Shays Rebellion in 1787. Indeed, the initial codification of slavery in colonial America not only legalized the enslavement of resident Africans, but, by necessity, also authorized their severe restriction and overall repression—an architecture of enforcement that maintained the status of enslaved blacks with violence. The ultimate intent of such laws—or slave codes—was to prevent a slave insurrection.
The regulation of slavery, at the time the Act was passed, was largely a state matter, not a federal one. In fact, the drafters of the Constitution were formally silent on the peculiar institution, only referencing it by euphemism (e.g., “persons held to service or labour”), for the most part in order to address such pesky issues as congressional representation and taxation. Other than sanctioning the foreign slave trade through 1808 and compelling states to return fugitive slaves, the regulation of slavery itself was relegated to the states, a convenient way to sidestep any prolonged constitutional debate over the legitimacy of the institution itself. It is this silence and legal complicity that is often referred to as America’s original sin.
As for slaveholding states during the antebellum period, their slave codes were abundant in number, but repetitive in substance. Among other things, slaves were forbidden from moving about without some kind of pass or “certificate,” from assembling in large numbers, from staying outdoors past a designated curfew, from owning weapons, and, of course, from raising their hand to strike a white person. And the power of enforcing these codes was invested in all white citizens, whether they were members of state-funded militia or less organized slave patrols, slaveowners or overseers, or merely a white person of any official or unofficial stripe. “[T]he law told the white man, not the Negro, what he must do,” historian Winthrop D. Jordon notes in his classic White Over Black. “All white persons were authorized to apprehend any Negro unable to give a satisfactory account for himself.”