The Freeman’s April issue is devoted almost entirely to the Civil War, mashing together reputable historians like Burton Folsom with fakes like Joseph Stromberg. Most interesting, however, are two articles by Jeffrey Rogers Hummel, author of Emancipating Slaves, Enslaving Free Men. Hummel is at least a competent historian, but he still makes bad legal and philosophical arguments.
“Insofar as the war was fought to preserve the Union,” Hummel writes, “it was an explicit rejection of the American Revolution.” How is this the case? Hummel identifies two philosophical traditions in that Revolution which he says were each “championed” by the opposing sides of pro- and anti-slavery: “Whereas the abolitionists were carrying on the assault against human bondage, the fire-eating secessionists embodied the tradition of self-determination and decentralized government.” Assuming for a second that “self-determination” is part of the American Revolutionary tradition, this does not support the thesis that preserving the Union was an "explicit rejection" of that tradition; at most, it shows that preserving the Union represented the triumph of one of the two strains that Hummel himself locates within that tradition. And he does something similar in the next sentences:
As a legal recourse, the legitimacy of secession was admittedly debatable. Consistent with the Antifederalist interpretation of the Constitution that had come to dominate antebellum politics, secession undoubtedly contravened the framers’ original intent.
That’s certainly true. But it also contradicts his thesis. If Hummel admits that the defenders of the Union had at least half of the American Revolutionary tradition on their side, how can their prevailing be described as an “explicit rejection” of that tradition? Hummel has at most shown that both sides laid claim to some part of that Revolutionary tradition.
But he continues:
[A]s a revolutionary right, the legitimacy of secession is universal and unconditional. That at least is how the Declaration of Independence reads. “Put simply,” agrees William Appleman Williams, “the cause of the Civil War was the refusal of Lincoln and other northerners to honor the revolutionary right of self-determination—the touchstone of the American Revolution.”
It is simply a falsehood to say that the Declaration of Independence says that secession is (a) a revolutionary right, and/or (b) unconditional. The Declaration of Independence does not confuse secession and revolution—which are two utterly different concepts—nor does it say that revolution is an unconditional right. Secession is the alleged “right” of a state, consistent with the Constitution of the United States, to leave the federal union. As I’ve shown, secession is illegal, and it is never mentioned in the Declaration. Revolution, by contrast, is a right of all individuals—as Lincoln never denied—but as the Declaration makes quite clear, it is conditional:
to secure [their] rights, Governments are instituted among Men.... [W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.... Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government....
The italicized portions are conditions. Revolution is justified only to defend the rights for which governments are instituted, and only when government becomes destructive of these ends—when a long train of abuses shows that the government is going to reduce the people to despotism—and not for light and transient causes, let alone in order to violate individual rights. The right of revolution, articulated in the Declaration of Independence, is anything but “unconditional.” It certainly cannot be construed to justify the alleged right of a state to leave the federal union in order to perpetuate human slavery—to insist upon non-interference with its alleged right to oppress its people. That notion, the fundamental premise of the Confederate rebellion, has no foundation whatsoever in the American revolutionary tradition.
True, there at first appears to be a tension between democracy and individual liberty, as legacies of the Revolution. But that apparent tension disappears upon careful reading of the Declaration and other writings of the founders. Liberty, far from being contrary to American democracy, is its precondition. For the founders, democracy is legitimate only insofar as it respects individual rights. The Declaration makes this clear, not only by starting with rights, and saying that "any government" destructive of these rights (including a democracy) should be overthrown--but also by saying that the states may only do those things that free and independent states "may of right do." Jefferson, in his first inaugural, said that "though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression." Madison, in Federalist 45, wrote that state autonomy must take a secondary place to individual freedom and public happiness: "as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter." Most significantly, the Constitution begins with the assertion that liberty is a blessing--and then proceeds to limit democracy in various ways in order to protect it. In brief, the founders knew that self-government was legitimate only if based on individual equality and liberty. Whatever William Appleman Williams might say, the "touchstone" of the American Revolution is not the mere autonomy of governmental entities, but the primacy of equal individual rights.
The primacy of equal individual rights reconciles what Hummel thinks are contrary elements in the American revolutionary tradition; the fundamental right to equal liberty is what justifies and limits government's claim to legitimacy. It is the more fundamental right to liberty that gives us the right to government by consent, and authorizes us to create (limited) government. That is the argument of the Declaration, and that is precisely why the Confederacy's leaders didn't rest their arguments on the Declaration, but denounced it, and insisted that, in Calhoun's words, it was a terrible error to believe that all people are entitled to liberty. To them, government was primary; it endowed people with liberty at its pleasure.
The most articulate expounder of the primacy of liberty over democracy? None other that Abraham Lincoln. The whole point of the Lincoln-Douglas Debates is the tension between individual rights and self-government, with Douglas arguing that democracy is primary, and Lincoln that liberty is primary. "The doctrine of self government," said Lincoln,
is right--absolutely and eternally right--but it has no just application, as here attempted. Or perhaps I should rather say that whether it has such just application depends upon whether a Negro is not or is a man. If he is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him. But if the Negro is a man, is it not to that extent, a total destruction of self-government, to say that he too shall not govern himself? When the white man governs himself, and also governs another man, that is more than self-government--that is despotism. If the Negro is a man, why then my ancient faith teaches me that “all men are created equal;” and that there can be no moral right in connection with one man's making a slave of another.
Judge Douglas frequently, with bitter irony and sarcasm, paraphrases our argument by saying “The white people of Nebraska are good enough to govern themselves, but they are not good enough to govern a few miserable Negroes!!”
Well I doubt not that the people of Nebraska are, and will continue to be as good as the average of people elsewhere. I do not say the contrary. What I do say is, that no man is good enough to govern another man, without the other's consent. I say this is the leading principle--the sheet anchor of American republicanism. Our Declaration of Independence says:
“We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness. That to secure these rights,governments are instituted among men, DERIVING THEIR JUST POWERS FROM THE CONSENT OF THE GOVERNED.”
What's crucial here is that Lincoln was right in holding that each human's right to liberty takes primacy over "self-government," and thus that no form of "self-government" is valid that contradicts this more basic principle. This was clearly the argument of the Declaration of Independence. Yet the Confederacy's entire claim of a right to self-government rested on denying this argument. The south initiated force, not to defend liberty, but to defend its purported right to oppress people and deny them equality and liberty--to deny them the right to government by consent--to deny the premise from which self-government derives its legitimacy.
Hummel answers these points in a second article. If a slave state cannot appeal to self-determination, then wasn't the Revolution also illegitimate?
[B]lack slavery was practiced in every one of Britain’s North American colonies, from New Hampshire to Georgia, at the opening of the War for Independence. Moreover, Virginia’s royal governor issued a proclamation on November 7, 1775, similar to Lincoln’s Emancipation Proclamation, freeing any slave who would bear arms against the rebellious colonists.... [M]ost arguments marshaled to deny the legitimacy of southern independence in 1861 apply with almost equal force against American independence in 1776.
There's no denying that slavery existed in the colonies in 1776. Unlike the Confederates, however, the American founders were humiliated by that fact, because they recognized and admitted that slavery was utterly inconsistent with the principles of the Revolution. Never did they claim that they had a right to implement slavery or to defend it against foreign interference; on the contrary, Jefferson originally blamed the king for forcing slavery on the colonies! It is certainly true that slaves had every right to run away from their masters in response to British invitations--and Jefferson himself admitted this! When his own slaves ran away to the British lines, he wrote, "Had this been to give them freedom, he [Lord Cornwallis] would have done right; but it was to consign them to inevitable death from the small-pox...." When slaves revolted in Virginia years later, he echoed that sentiment, acknowledging that the slaves in Gabriel's rebellion were justified. The point is that the existence of slavery did indeed undercut the legitimacy of the American Revolution, and the founders' acknowledgment of that fact, and recognition that slavery could not coexist with the principles of the Revolution meant that slavery must ultimately end if the American experiment of liberty was to succeed.
The American Revolution was legitimate only insofar as it was based on principles that necessitated the ultimate demise of slavery. The founders admitted this. And it was precisely for this reason that Lincoln believed that the fathers had placed slavery in the course of ultimate extinction. It was when the south abandoned that principle--when the south ceased to be ashamed of slavery and insisted that it be made national and perpetual--that the war came. Lincoln sought to find some way that slavery might ultimately and peaceful end, as the Revolutionary principles required and without which the Revolution would lose any justification. And the south chose to start a war rather than see that happen. In short, it was precisely because the founders acknowledged the inconsistency of slavery, and pledged themselves to principles requiring its demise that their act was justified; it was the Confederacy's pledge to perpetuate slavery as a fundamental principle of their society that not only obliterated their own claim to legitimacy, but also cast a cloud of doubt over the legitimacy of the Revolution itself.
To borrow an analogy from Lincoln and from Martin Luther King, one might say the founders were operating on moral credit, borrowed from the principles of equality and liberty, which they could make good only by ending slavery. The Confederacy sought to default on that debt--no, to simply expropriate the loan. The Lincoln Administration did not seek to pay it immediately, but to simply acknowledge that it was a debt, and to move toward its eventual payment. The south, however, chose to begin a war rather than see that done.
All of these matters, however, Hummel chooses to bypass, only to express bewilderment at what Lincoln was really trying to accomplish. It was “nonsense,” he says, to suggest that “peaceful secession would have constituted a failure for the great American experiment in liberty.” I suppose that depends on how you define that experiment. Since secession is unconstitutional, to have permitted it would have meant permitting the violation of the supreme law of the land. That would, in at least some sense, have meant the failure for the American experiment, insofar as that experiment is embodied in the Constitution, as ordained by the people of the United States. This is particularly the case when the reason for that secession—the Lincoln Administration’s pledge to bar slavery from the western territories—was perfectly lawful (Dred Scott to the contrary notwithstanding), and where the principles underlying the south's act were fundamentally contrary to the principles of the Revolution; being in the service of inequality, slavery, and the rule of others without their consent.
But these legal and philosophical principles don't appear in Hummel's account of the Civil War (except that initial bit where he admits secession was illegal). Instead he claims that the cause of the "carnage" was--no, not the south's decision to initiate force so as to keep slavery perpetual--but "northern worship of the Union as absolute deity." Obviously, Hummel is engaging in exaggeration here; what he actually means is, northern insistence that the Constitution is the supreme law of the land. Had the north simply acquiesced in the violation of the nation's supreme law, there would have been no war. Had Lincoln violated his oath of office to defend the Constitution, and abandoned his duty to see that the laws be faithfully executed, there would have been no war. Surrender, of course, is always a sure path to peace.
"Why," Hummel asks, "was preserving the nation’s existing boundaries such a big deal?" Lincoln explained why, time and again, in his writings snd speeches; the Constitution is the law, which as president he was bound to enforce. But Hummel believes it's just a matter of "nationalistic bias," which was "automatic and unquestioned," and "never satisfactorily [explained]." One might suggest beginning that an explanation can be found in Article VI of the Constitution of the United States. To quote a famous historian, "secession undoubtedly contravened the framers’ original intent."
Hummel is certainly right to say that war for mere territorial gain is immoral (which is why the Mexican War, initiated by southern interests for the perpetuation of slavery was immoral). But here, let us consider what happened after the Civil War. In the decades that followed, whites north and south reached a compromise. Southern states would be allowed essentially to reinstate slavery de facto, and to essentially retain the basic elements of the Confederate cause--even using Confederate imagery in their flags--so long as they accepted U.S. sovereignty. This disastrous betrayal of the promise of Reconstruction in many ways transformed the Civil War into a mere squabble over territory. Not essentially, but in many crucial ways. The principles of equality and liberty were largely abandoned in the name of Grant's "let us have peace," and the war fought for the ultimate end of slavery and the permanence of the Declaration's principles largely made into a war for mere landmass. It was not until the Civil Rights era that the principles were reassessed, and the nation reminded of its moral debt. And that was accomplished, not in the name of the southern demand for self-government and state autonomy, but in the name of the Declaration of Independence, and its greatest student, Abraham Lincoln.
Update: Lincoln making the point that the Revolution without principles of equality and liberty would have been merely a war for landmass:
All honor to Jefferson--to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression.