1861 Was Not 1776: An Essay

Update: An astute observer has corrected a factual mistake. James Madison wrote “much of” – not “most of” – the Federalist. Alexander Hamilton wrote more, though Madison wrote many of the key essays that frame the meaning of Union. My faux pas.

The following is adapted and expanded from an email listserv essay I wrote recently, inspired initially in response to the following phrase someone had written: “The American Republic created by the founding fathers was destroyed by the civil war….” Here is my argument why libertarians should think long and hard before embracing a defense of the Confederate cause:

Quite simply, the noble libertarian impulse to champion resistance to government encroachment on people’s freedoms has led many astray to assail the Union’s cause during the Civil War and to embrace the validity of the Confederate cause.

This is not to imply in the contemporary spirit of relativist debate that holding this reflexive position necessarily makes one a racist or slavery apologist. But the line of argument that has been used takes the misguided tack of placing all blame on the eventual victors of the Civil War, while giving short shrift to the question of the war’s causation. Understanding who is responsible for the war and the political context of the era shrouds the ability to cast easy reflexive judgments against Lincoln that can be used to draw a straight line of rising statist oppression from then until now.

To have the clearest possible understanding, there is a need to assess the context of issues and debates and coalitions that circumscribed real and practicable changes in policy. I am not an apologist for all economic policies espoused by Lincoln and the Republican Party of his era. I am, however, extremely dubious of those like Thomas DiLorenzo who practice questionable scholarship in their obsessive anti-Lincoln crusades while ignoring or misunderstanding the relevant events that led the nation to the brink of disunion. Discussing what caused the Civil War must include close looks at things like the Kansas-Nebraska Act and the question of “popular sovereignty,” the Dred Scott decision, fugitive slave laws, and the like.

Let me pause here to address the issue of slavery. Wasn’t slavery just an inefficient and decaying institution that was destined to disappear in a generation or less, you say? Why get all hot and bothered to fight over it, when so many other Western countries were able to abolish the institution peacefully? First of all, to argue over whether the Civil War could have been avoided on these grounds-and a lot of ink has been spilled feuding over the question-is almost entirely speculative. It didn’t happen that way. As much as we rue the massive bloodshed, things didn’t unfold in the United States as in other Western slaveholding countries in part because the closed, distinctly un-republican system of race-based chattel slavery clashed more severely with America’s peculiar ideals embodied in the Declaration of Independence. And, of course, to downplay the essential evils of slavery as a freedom-loving libertarian would be intellectually dishonest.

It is frequently asserted that “slavery was not the main issue” in the Civil War. Nothing could be further from the truth. The primary instigators of the war were agitators within a slave-owning class from the Cotton South who were possessed with preserving their “Peculiar Institution” of slavery. Secession wasn’t pursued in defense of some abstract principle, but primarily was adopted as a matter of convenience in service of political power and the institution of slavery. It is important to remember just how centrally ingrained slavery was in the domestic, economic, and larger cultural life of the South. And more ingrained in the Deep South states, where black slaves on the larger cotton and rice plantations made up a bigger share of the economy, and of the population.

It is important to remember that in the 1850s, one particular Deep South state – South Carolina – had the nation’s blackest population, the most concentrated slave wealth, and the least democratic government in the nation. Some might also say the most refined, genteel, and Anglophile state, too. Back in 1831, President Andrew Jackson – no fan of centralized federal government powers, witness the National Bank episode – compelled John Calhoun and South Carolina to back down in its attempt to nullify a national tariff. Three decades later, South Carolina was the chief hotbed of secession. The Palmetto State made the decisive leap in November-December 1860 that provided the critical momentum for other Deep South states to follow. If South Carolina didn’t hasten to secede as it did, one can only wonder how events might have unfolded.

In the 1850s, the U.S. Supreme Court (represented by an overwhelming pro-Southern majority) upheld the Fugitive Slave Act. The issue came to a head because several Northern states had passed “personal liberty laws” as an attempt to deny enforcement of the Fugitive Slave Act adopted as part of the Compromise of 1850. The U.S. Congress had said all states were obligated to return human property to their recognized masters, and some states made an attempt effectively to nullify the federal law (albeit not to the extent South Carolina did in 1830-31).

The overwhelming majority of the same pro-Southern slaveholding group that in the 1850s had stood behind the use of national governmental power to enforce the Fugitive Slave Act took refuge under the states’ rights banner in 1860-61. Why? Because they walked out on the National Democratic Party when its Northern faction stood behind “Popular Sovereignty,” rather than concede to guarantee slave ownership in the territories. As a result, both factions lost the national election. The executive branch had been in mostly pro-Southern friendly hands for most of a generation. As some moderate Southern unionists argued unsuccessfully during the secession debate, pro-slavery elements still held enough of Washington’s reins of power to provide Constitutional checks and balances. Besides the Supreme Court, there were enough votes in the Senate and House to oppose the Republican agenda.

It is important to note that, whether you accept the Henry Clay/Daniel Webster view of the union or the even more reliable James Madison view (who after all wrote most of the Federalist), secession was and is not Constitutionally permissible. The South’s actions also failed the test of a just revolution. Lincoln himself recognized the legitimacy of this right, when taken in self-defense as required by the Declaration of Independence.

Hence the title: 1861 was NOT 1776.

To elaborate on the question of secession’s illegality and illegitimacy in more depth, I commend two articles written by Tim Sandefur, a libertarian Constitutional scholar friend of mine, to your perusal (Part 1 and Part 2).

Note that the moderate antislavery Lincoln had yet to be inaugurated President when the seven Cotton States, led by South Carolina, seceded. As candidate and President-elect, Lincoln had pledged to uphold the Republican’s Constitutional platform to forbid expansion of slavery in the Western territories, but had sent signals he was willing to compromise on the enforcement of the national Fugitive Slave law. The momentum toward secession was driven by slaveholding fears that the institution of human bondage could not be exported west, and that Republican Party patronage would lead to Southern political appointees who would weaken their social controls by daring to promote an open republican debate about their “Peculiar Institution.” How few were the appeals to secede made on the basis of Republican tariffs.

Led by the “Fire-Eaters” (as they were dubbed by many in the North), the political leaders of the Deep South forced the question of disunion on the new Lincoln administration. As President, sworn to his duty to uphold the Constitution, Lincoln refused to abandon the Federal properties of Forts Sumter and Pickens. The South fired first, and Lincoln acted in self-defense. Without a legal right to secession, or a natural right to revolution, the Confederate States were in a precarious position.

If we are going to rail against someone for provoking the national tragedy that took 600,000 lives, why not rail against the agitating secessionist Southern slaveholding class? I am glad to make the case that they are at least as deserving of castigation as any of the other historical actors of the period. Of course, no one planned or expected for events to result in such bloodshed and destruction. Here I would just invite a second look at Lincoln’s Second Inaugural Address for a more sublime interpretation.

I have to pause here and say that because the engine of secession was driven overwhelmingly by the class of plantation slaveowners, the institution of slavery did not motivate all or necessarily even most of the participants who fought for the Confederacy. Slaveowning Southern whites were a minority – a wealthy and powerful minority, but a minority nonetheless. Some non-slaveholding whites doubtless were motivated by fighting for the skin color status that the system of race-based slavery afforded them. Many others nobly fought in defense of their state’s honor. General Robert E. Lee well embodies the terrible dilemma many faced in choosing loyalties between the Union and their home state. A small minority of Southerners from seceded states (mostly from western Virginia, eastern Tennessee, and northern Alabama) donned the Union uniform and fought.

To review briefly, Southern leaders’ primary impulse for provoking war was in defense of slavery. Lincoln’s fundamental prerogative in self-defense was to preserve the Union. So does everything he did as wartime President (including instituting the draft, imposing an income tax, suspending the writ of habeas corpus, disbanding the Maryland State Legislature) withstand scrutiny from a civil libertarian perspective? No, and I won’t defend everything Lincoln did. However, seeing that he acted in fidelity to preserving the Union-and more importantly, the republican principles and ideals it embodied-I don’t think he can be condemned as harshly.

And it is important here to pause and ask as Lincoln did in his July 4, 1861, message to Congress: “Is there, in all republics, this inherent and fatal weakness? Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?”

Some have insisted on calling Lincoln’s wartime presidency a “dictatorship,” but the same neo-Confederate defenders rarely seem willing to use the same label to describe Jefferson Davis’ government? The Confederate States enacted conscription (before the USA did) and an income tax, and Davis suspended the writ of habeas corpus on several occasions. Sure, the Confederacy had a guaranteed no-tariff policy, which was better than the Union’s Republican trade agenda, but most Confederate economic policy was more socialized and nationalized than its Northern counterpart. And the Confederate constitution was also built on the not-so-great “cornerstone” principle that black people were inferior to white people. On balance, if a libertarian-minded person would have to choose a side in a war, the Yankees’ side makes at least as much sense as the alternative.

One can understand the need to contend that the Civil War wasn’t primarily about slavery. I’ve already shown that it was instigated by members of a class of slaveholders who made arguments for secession in defense of their “Peculiar Institution.” Just because the War was provoked in pre-emptive defense of the slavery institution doesn’t mean the Union side fought strictly and uniformly in primary to emancipate the slaves. Especially in the early years of the War, Lincoln emphasized the war to preserve the Union because it was fundamentally the basis for preserving the coalition. And while the secessionists launched the war to preserve and protect slavery, their actions ultimately precipitated a War that was transformed into an antislavery crusade, as well. Down goes the neo-Confederates’ strawman claim that because Lincoln didn’t begin the war with emancipation as the chief aim that the conflict wasn’t chiefly about slavery.

Antagonists’ attempts to portray the Emancipation Proclamation as nothing more than a cynical diplomatic ploy tells only half the story. A survey of Lincoln’s letters and speeches (take, for example, the 1858 House Divided speech) reveals his purpose was to lead the U.S. to live up to its Declaration of Independence creed and to ultimately end slavery. (Of course, he took a more pragmatic approach than the abolitionists.) The Emancipation Proclamation not only represented an opportunity to win diplomatic neutrality from Great Britain, but also to enlist the military service of freed black men. Its humanitarian effects were limited, but its symbolism was unmistakable. As a precursor to the 13th Amendment, the Proclamation led to further national advancement in the antislavery cause than Lincoln himself at first could have expected as an opportunity for his presidency.

Yes, the Civil War resulted in an expansion of federal government powers, but many of them were recognized as temporary wartime powers and discarded for a generation or more. As for the policy of Reconstruction being a failure, no argument will be had from me. Following Lincoln’s death, the radical abolitionists – enabled by the embittered, inept Tennessee Unionist President Andrew Johnson – certainly overreacted with their punitive approach, and the well-intended 14th Amendment was carelessly worded as an empty vessel that since has been filled with unsavory meaning by activist judges. Lincoln sought to admit the seceded states on more lenient and reasonable terms.

In the end, most of Lincoln’s actions as President were done in the face of an extraordinary national emergency. This fact doesn’t excuse all he did, but he deserves much more justification than many libertarians have given him credit for.

Did the Civil War make “later expansions [of federal government power] easier”? Yes, but mostly in the same sense as saying that World War II made global holocaust easier because it led to the development of nuclear bombs (not a perfect analogy, I admit). Who then is to blame for the Leviathan state and nearly untrammeled federal powers that unite so many on the Right? I blame the Progressives, who appropriated the history of the Civil War as part of their agenda, an agenda rooted in a European statist philosophy. The Progressives made a fundamental break with the Founders’ vision of history, liberty, human nature, and the role of government.

Another notable author quoted by many “neo-Confederate” libertarians, Jeffrey Hummel makes an admirable but flimsy case in his Emancipating Slaves, Enslaving Freed Men that Lincoln’s policies were a clear and deliberate precursor to the later statist Progressive agenda. Unfortunately, for the reasons explained here and others, he is wrong. For one, the antebellum Whig tradition that informed Lincoln’s views cannot fairly be seen as part of the same intellectual lineage.

Historian Allen Guelzo concluded the matter quite aptly in a recent article for Claremont Review of Books:

But the Right has just as frequently avoided the terrible implications of secession in a democracy in the mistaken belief that secession is some form of protest against statism. It is one of the enduring ironies of American conservatism that so many of its thinkers idolize John C. Calhoun as the American Burke, when the Confederacy that Calhoun dreamt of turned into one of the most egregious practitioners of state centralization, price-fixing, forced industrialization, and economic nationalization-and with the most scant regard for civil liberties-in American history. And growing as the Confederacy did out of an economic environment dominated by the practice of forced labor, why should this be a surprise? It was not Abraham Lincoln who invented the nanny-state; it was that son of the Confederacy, Woodrow Wilson.

From the libertarian perspective, the Progressives are the bad guys in American history. Leave Lincoln and the Civil War out of it, I say.