Jason Kuznicki has posted a video on Libertarianism.org on the question of how libertarians should view the Civil War. For the most part, I think he’s spot-on. Unfortunately, he gets a few very important things wrong, and it’s worthwhile to take a quick look. Here’s the video.
At about 3:00, Kuznicki makes the correct observation that Confederate apologists who portray the war as about “states’ rights” ignore the fact that the Fugitive Slave Law of 1850 (not to mention the federal Slave Code that the Slave Power demanded up to the war’s outbreak) was a massive intrusion on the autonomy of states that opposed slavery. He might also have added that it was a massive government subsidy to private industry. Ron Paul and others who have tried to claim that the secessionists were motivated by opposition to Whig programs for “internal improvement” ignore the fact that the Slave Power demanded—and received—enormous subsidies from the federal government, if not in the form of outright transfer payments, at least in the form of government-run escapee-capturing services. The Burns case is a great example. How much did that cost the taxpayer? The Slave Power also got in-kind subsidies—for example, through federal censorship of anti-slavery literature. Kuznicki’s right in what he says—it’s just additional point he might have made.
At about 5:00, however, Kuznicki takes a look at the Union, and at this point his effort to be fair dips into unfortunate and unfair criticism of Lincoln and the Union cause. For example, he says
Lincoln’s primary purpose was to save the union at the outset; it was not to free the slaves. Lincoln said that if he could save the union by freeing all the slaves, by freeing none of the slaves, or by freeing some of the slaves, he would do it. He would do whatever it took to save the union. This isn’t something that I would say most libertarians could sign on to.
Well, maybe so. But Lincoln believed—and he was right—that he had no legal authority to free slaves in states where slavery was legal. The Constitution barred such interference, and it is to Lincoln’s credit as a President that he refused to exceed his constitutional authority to accomplish something he would very much have liked to do. However, as President, it was not only within his power, but it was his specific duty to see that the laws be faithfully executed, and that includes the Constitution of the United States. Saving the Union—i.e., putting down a rebellion against the laws—was emphatically his obligation, as he said in his First Inaugural: “You have no oath registered in heaven to destroy the Government, while I shall have the most solemn one to ‘preserve, protect, and defend it.’” And what’s important about Lincoln’s famous letter to Horace Greeley in which he said “If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that”—what’s important about that statement is his announcement that he would free the slaves to preserve the Union—not that he would allow slavery to remain if necessary. Plenty of presidents had threatened or used military force to preserve the Union, on the promise that slavery would not be messed with; Jackson, for example, who summoned troops to respond to the Nullification Crisis. Lincoln was the first president ever to announce that he would be willing to free all of the slaves if the South did not stand down and comply with the law.
Now, if one is talking at a level of generality from which a libertarian would say that the officeholder should shrug off all his legal obligations and limits in the service of the immediate, and illegal, abolition of slavery, then perhaps “most libertarians” would not sign on to Lincoln’s scruples about his constitutional authority and obligations as President. But then libertarianism must have no respect for the rule of law, and I cannot accept that notion. If we’re going to be accurate about Lincoln’s aims in the Civil War, details like the above are crucial, lest we be drawn into the same simplistic notion of the War that the Doughface Libertarians portray: that Lincoln only cared about the Union and didn’t care about slavery. Lincoln was always emphatic that slavery was the cause of the war—and he wanted to see it done away with. But he rightly saw that his power to do something about it was limited by the Constitution. He sought, as a practical political leader must do, to work as best he could within his authority to accomplish the aims desired. An argument can be made, and Garrison and other anti-political abolitionists made it, that that is a form of cowardice and sin. But I side with Lincoln and Frederick Douglass, that it is statesmanship and ultimately a good thing.
Kuznicki continues: “We tend to believe that if you wish to exit a political republic, you ought to have the right to do that.”
This is to completely misunderstand the Civil War. Neither Lincoln nor any other leader of whom I’m aware ever denied that any American citizen could renounce his or her citizenship in 1861-65 or at any time. But that was not what was happening. (And of course the slaves were never consulted on whether they wanted to “exit the political republic.”) The Civil War was not about people “wishing to exit a political republic.” That is something that individuals decide. The Civil War, on the other hand, was about whether states, corporate political entities, could unilaterally declare themselves independent of the federal union. As I’ve explained in many places, the Constitution does not allow states to do that. Doing so is an illegal and potentially revolutionary act. That means that the President—whose job it is to see that the laws be faithfully executed—must take whatever steps he deems necessary to put down such an illegal act…unless it be justified as an act of revolution. But, of course, because the southern states seceded in order to perpetuate slavery, they cannot lay claim to the principles of revolution, as Kuznicki rightly notes.
Again, we are not talking about the right of individuals to “exit a political republic.” Secession does not purport to be a right of individuals. Its proponents claim that secession is a lawful power of states unilaterally to leave the union. But it is not lawful. Secession is illegal everywhere, under all circumstances, at all times, whatsoever. Individuals have the right of revolution, of course, or to give up their citizenship. But neither Lincoln nor any other Union leader claimed otherwise.
Kuznicki rightly notes that Union war tactics and tactics on the home front violated civil liberties. However, he overlooks certain mitigating facts. For example, the suspension of habeas corpus is constitutionally authorized in times of rebellion. While Chief Justice Taney (whose legal opinions ought always to be treated with great skepticism) found that only Congress is authorized to suspend habeas corpus, the Constitution is in fact silent on that matter, and it seems implausible, since of course the very rebellion necessitating such a measure could block Congress from assembling. Moreover, when Congress did convene in July, 1861, they ratified Lincoln’s suspension of habeas corpus. I believe he was fully within his lawful power to do so. Now, again, perhaps a libertarian would reject the use of this power even though lawful; I think that’s debatable. But in any event, Lincoln’s suspension of habeas corpus cannot be simplistically labeled an abuse of civil liberties. (Also, Kuznicki says Lincoln “established the censorship of the mails.” Perhaps this is mis-speaking, but it was in fact Andrew Jackson and the Slave Power who “established” censorship of the mail.)
At about 6:40, Kuznicki asks how a libertarian might have approached the war, and says
I tend to favor something that Murray Rothbard [endorsed]:…“immediate and unconditional abolition, with no compensation to the slavemasters. Indeed, any compensation should have been the other way—to repay the oppressed slaves for their lifetime of slavery.”
Well…okay. But if we’re living in Fantasy Land, how about just going back and wishing there had never been slavery to begin with? This is just as likely to have occurred as what Rothbard endorsed. In fact, abolitionists, including Garrison, Douglass, and Sumner, also all endorsed that approach…which had absolutely no chance whatsoever of actually happening. There was no chance of even compensated emancipation—which Lincoln tried to arrange up until the last minutes before the war. But uncompensated emancipation? With what, a magic wand? Surely being a libertarian doesn’t require us to engage in such fancies if we’re asking how one ought to have resolved the slavery controversy. It must again be emphasized that the only political leader in 1860 who had a practical plan for the gradual and peaceful end of slavery was Abraham Lincoln. That plan was to bar slavery from entering the western territories so that slavery could be put in the course of ultimate extinction. It was a very long-term plan which would have resulted in at least a generation of additional suffering, but it was more than anyone was offering at the time—except the abolitionists, who were a tiny minority and had absolutely no prospect of actually accomplishing anything.
“There aren’t any heroes in this struggle,” Kuznicki says at about 8:00. Well, that depends on what you consider heroism. If you think heroism consists of boldly stating crucial moral principles that nobody wants to hear—and thereby making yourself politically radioactive so that you never actually accomplish anything—then your heroes are going to be the abolitionists. If you think heroism consists of participating in the system to accomplish the best you can, knowing that this will incur compromise and imperfect results, but will actually result in making some people freer, then you’re going to admire Lincoln and his Republican allies. Personally, I consider both of these groups heroes. We can acknowledge a man’s, and a political leader’s, shortcomings while still considering him a hero—can’t we?
It’s unclear to me if Kuznicki recognizes that secession is not a part of our Constitution. In a passage beginning around 8:10, he falls into a series of imprecise sentences that confuse the issues. For example, he says “secession, as Jefferson puts it, should not be for light or transient reasons.” But Jefferson was speaking of revolution, not secession. Perhaps this is just imprecision, but it’s critical to keep in mind the difference. Secession is allegedly the lawful power of a state to leave the union without asking leave of the people as a whole or of another state. Revolution is the right of individuals, acting in self-defense, to overthrow an oppressive government. The two are distinct. When Kuznicki says that “our country began as a secessionist movement,” he says what is not true. The Revolution was not a secessionist movement, and one searches in vain for the word “secession” in the Revolutionary documents. The Revolutionaries never claimed that leaving the British Empire was a lawful act which colonies could do as corporate entities. They recognized that their acts were illegal and revolutionary, and for that reason appealed not to legal arguments, but to moral ones in justification. And they recognized that their acts required new state constitutions because they were revolutionary, not lawful acts. The concept of secession, by contrast—that is, the idea that a state may unilaterally and lawfully leave the union—was invented by John Calhoun and his supporters in the 1830s. When Kuznicki invokes the example of Slovakia, he again diverges from the point. Perhaps secession was lawful under the Czechoslovakian Constitution—I don’t know—but secession is not legal under the United States Constitution. And maroon societies did not secede at all—they were groups of individuals who gave up their citizenship and purported to establish new political societies. They did not claim that as a corporate entities their political neighborhoods were now independent. They were come-outers, not secessionists.
Some have responded that my use of “secession” is not what other people mean by that word. That may be so, but in constitutional discourse, we’re using the term in its precise legal meaning, and not in a broad sociological sense. It’s crucial that we not confuse it with revolution—indeed, this is the source of most Doughface misrepresentation of the issues involved. We should be loath to accidentally concede the very points we are struggling to oppose. For more on the Civil War and libertarianism, consult my “How Libertarians Ought to Think About The U.S. Civil War,” as well as my various blog posts on the subject.
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