Must Southern partisans condemn the immorality of slavery?
weblog of Eugene Volokh, The Volokh Conspiracy
, being praised at National Review Online
, I checked it out. While I don’t know whether Volokh considers himself a liberal or a conservative, I immediately came upon an item about the Civil War
in which Volokh, in typical liberal (or rather neo-conservative) fashion, was projecting modern moral concerns into the past in a most ahistorical way. The result was the following e-mail:
Dear Mr. Volokh,
I have had long debates with neo-Confederates over their simplistic condemnation of the North and total justification of the South, but in your blog entry attacking Southern partisans you make a serious error. You condemn Southern partisans such as Patrick Buchanan for not bringing in the evil of slavery to show that the South’s claim that it was fighting for its liberty was bogus. But, by your reasoning, the American Revolution is also illegitimate because the colonists claimed to be fighting for liberty but did not challenge their own institution of slavery. The British themselves at the time made a great deal of this, mocking a people who said “All men are created equal” while holding three quarters of a million black slaves. While the American revolutionists, unlike the Confederates, did not fight specifically to defend slavery, the basic objection to them under your logic remains: a revolution for “liberty,” while they’re holding slaves. Given your moral premises, the only way you can condemn the Confederacy and not condemn the American Revolution is by making an unprincipled exception for the American Revolution. And that indeed is the way liberalism operates (most conservatives today are basically right-liberals). That is, liberals posit principles which if followed consistently would be incompatible with the legitimacy or even the continued existence of society, so they are forced continually to make unprincipled exceptions from their own principles.
On the historical question, it is of course true that the main reason the South seceded was to protect the institution of slavery which they felt was threatened. (Many neo-Confederates falsely deny that today and pretend the main reason for the secession was a conflict over the tariff.) The conflict over slavery—or more precisely the conflict over the expansion of slavery into the territories—was the issue that led to secession, but the Southerners as they perceived it seceded to protect their liberty, their liberty to maintain their institutions which were under continual condemnation from certain elements in the North. The morality of slavery does not properly play the central role in the Civil War debate that you want it to. Once the South had seceded, the North fought—at least initially—not to free the slaves but to restore the Union. The whole issue of Union versus secession has to do with the right of secession, or rather the right of secession without seeking the consent of the other states, as though the United States were nothing more permanent than an at-will contract. The South claimed the right of at-will secession. Lincoln denied it. That was, and is, the great debate. While slavery was wrong, it is not necessary for a person to bring the question of the immorality of slavery into that debate—in fact it is inappropriate, as it misstates the actual issue between North and South at the time. The North itself for the first two years of the war did not make the immorality of slavery the justification for fighting the South. The justification was to preserve the Union against an insurrectionary act that would destroy her. The issue, as Sherman put it, was whether the people of the United States should “let our common country perish in infamy and disgrace.” In trying to find ways to preserve the Union, Lincoln and Seward considered a constitutional amendment that would protect slavery perpetually. Even when Lincoln issued the Emancipation Proclamation in January 1863, it was as a military measure, though of course the Proclamation transformed the war from a war to restore the Union into a war that would overthrow slavery and thus the entire social system of the South. Many loyal Northerners rejected such a revolutionary goal and maintained that the only justifiable purpose of fighting the South was to restore the Union.
So, once again, Southern partisans are wrong and wrong-headed in lots of ways. But you also are wrong when you condemn them for not introducing the immorality of slavery into the debate of Union versus secession. This is the result of taking a moral concern and projecting it into the past without sufficient historical context.
This long debate with neo-Confederates may be of interest:
The True Cause of the Civil War: Moral Libertarianism
View from the Right
Posted by Lawrence Auster at July 09, 2003 10:07 AM | Send
Since it’s not clear from your email, on what points specifically do you think that Southern partisans are “wrong and wrong-headed?”
My objections to the neo-Confederate position are pretty well explored in the thread that is linked in the article. I don’t want to get into a discussion of that topic again here, but to sum up my views: What I object to in the neo-Confederates is their denial that the Union had any right or principle on its side, their claim of total Southern innocence and total Union guilt, and their presentation of the Union side in Nazi-like terms, all of which has the intent and effect of denying any legitimacy to the Union that the Civil War restored.
Well, if you’re closing down discussion before it starts, then there’s nowhere for me to go. I guess you get to be right by force of arms (so to speak).
For the record, I do deny that the Union had, in fact, right or (right) principle on its side. I do NOT deny that the Union BELIEVED that it had right principle on its side.
On the Southern innocence vs. Northern guilt question: it depends what you’re talking about. Southerners could have been completely innocent in their desire to exercise their lawful rights, and yet not so innocent in some actions stemming from their defense of those rights.
As for the presentation of the Union side in Nazi-like terms, that rubs me the wrong way as well and marks the perpetrator as a polemicist, rather than a historian. I do not think of Lincoln (just to choose the North’s chief representative) as a Hitler, bound and determined to do evil that good may result. I think of Lincoln as an FDR—one who subordinated the good of the citizens to the good of the state because this is what he actually believed in.
That having been said, if you don’t want to pursue this subject, you don’t want to pursue it. But let me state for the record that I have read the thread you linked, and the case I make for the South doesn’t turn upon the (in my view, largely ginned-up) DiLorenzo tariff argument. It turns strictly on the constitutional, historical, and legal questions involved, which go largely untouched in that thread.
I don’t mean to be shutting down discussion, and I can see from what Bubba has said that he is a reasonable supporter of the Southern cause. That’s a category which, based on repeated experiences over the last two or three years in talking with various neo-Confederates and paleo-libertarians, I had almost stopped believing existed.
But the question, which is worth discussing, of whether the Union was justified in waging war on the South, is a very large one, and I’ve gone around it so many times (not just in the linked thread but elsewhere), that I just don’t want to revisit it at the moment. Others are welcome to discuss it of course. My main point in the original article was to criticize Volokh’s ahistorical mode of thought.
Understood. Fair enough. If anyone else wants to join in, we can discuss it. Otherwise, I can let it go. I was just a little surprised, after reading what I thought were pretty level-headed comments about the South, to read that bit about “wrongheadedness” on the part of Southern partisons. It just seemed too dismissive, following on the footsteps of the rest of what you said. But no harm done. Now I know what you meant.
I agree with you on Volokh, by the way (I imagine that’s hardly surprising).
——“The conflict over slavery—or more precisely the conflict over the expansion of slavery into the territories—was the issue that led to secession, but the Southerners as they perceived it seceded to protect their liberty, their liberty to maintain their institutions which were under continual condemnation from certain elements in the North.”——
In my opinion, this isn’t quite true. I think the South, to a large degree, saw the institution of slavery as dwindling because of a lack of federal support for its expansion. While there were many abolitionists, there was hardly a politically formitable force for abolishing slavery in the states where it currently existed. That would have required a constitutional amendment, and the south could easily block it. So there was no real threat to ‘liberty’ there.
The south was basically holding, conversely, to a self-serving invented right (akin to the ‘right to privacy’); to wit, a right to take slaves into federal territories. They couldn’t win this battle on the legislative level, so they dishonestly argued that it was a constitutional issue. But I think only the most naive fool actually saw that as a genuine matter of ‘liberty.’
——“The South claimed the right of at-will secession. Lincoln denied it. That was, and is, the great debate. While slavery was wrong, it is not necessary for a person to bring the question of the immorality of slavery into that debate…”——
Since the issue of slavery was the underlying cause for this debate, I don’t quite think it is unreasonable to present this as a moral issue. Moreover, since the South’s legal argument for secession (i.e. that their constitutional freedoms were being violated) was utter nonsense, the question boils down more to the underlying moral debate than the baseless legal justifications the south used.
Think of it this way: In Lawrence v. Texas, it would be very naive to say that the debate was between people who believe sodomy laws are constitutional and those who believe sodomy laws are unconstitutional. In reality, it was between those who have such digust with sodomy laws that they want them eliminated through virtually any means, thus not caring much about what the constitution says one way or the other, and those who either didn’t feel so strongly, wanted to keep to the letter of the constitution, or supported sodomy laws. The ‘constitutional vs. unconstituional’ issue was more a candard than anything else. So it was with secession.
BTW, for future reference, I believe Volokh is a libertarian.
Owen, either the South had a right to secede at will or it did not. If it did, it was not required to submit its reasons for wanting to secede to some board to see if they would pass muster. That is the meaning of “at-will.” Thus, for those of us who maintain that the South (or any state, for that matter) DID have the right to secede at any time for any reason, there is no “underlying moral debate.” They could have seceded because they didn’t like the color blue in the national flag and it would have been all the same.
To Mr. Courrèges:
Of course, slavery was under absolutely no threat in the South. Yet the Southerners in 1860 acted as if they believed the accession of Lincoln to the presidency was going to bring an instant Northern invasion of the South. So in an act of utter madness, they rebelled against the United States and brought on the very disaster they had irrationally feared.
“Since the issue of slavery was the underlying cause for this debate, I don’t quite think it is unreasonable to present this as a moral issue.”
I did not say that the issue of slavery was not a moral issue. Of course it was. But the slavery controversy, which led ultimately to the South’s secession, is a different issue from the rightness or wrongness of the North’s decision to make war against the South. The Union did not invade the South because of the immorality of slavery, but because of the South’s rebellion against the Union.
This distinction—between the causes leading to the South’s secession, and the causes leading to the North’s decision to fight—is basic to an understanding of the Civil War, but for some reason (I think mainly a lack of sufficient knowledge of the chronology of the events) there is a general difficulty in grasping it.
I agree with Mr. Auster that many paleos and neoconfederates oversimplify the causes of the war. For example, I wrote an article for Lewrockwell.com (http://www.lewrockwell.com/orig/epstein10.html) critical of Dinesh D’Souza’s Letters to a Young Conservative which included a ridiculous universalist defense of Lincoln. I conceded that slavery had a good deal to do with the war, yet when it was published, it was changed to say that the Tariff the main cause.
That being said, I disagree with Mr. Courrèges who creates a straw man by saying the South made up a constitutional right to slavery akin to the current leftists who make up a “right to privacy.” I’ve never heard a single person claim that. The constitution acts mainly as a check on the Federal Government. Given that it allowed for the much maligned “3/5” compromised for counting slaves, it is hard to imagine that there was any intention of the founders to give the Federal Government the power to prohibit slavery in the Southern states. I believe that Mel Bradford was correct in that the Constitution should be interpreted by the State ratifying conventions. My home state of Virginia explicitly reserved the right to secede when ratified the constitution, as did others.
While I agree that debate over the expansion of slavery was a major cause of the war, that debate was fueled more by to sectional differences than over differences on the morality of slavery. Had the South won the War, they clearly would not be able to transport Slaves into Federal territory that was controlled by the North.
My main problem with the Neoconfederate movement is not so much their oversimplification of the War (which is much less oversimplified than your average neocon/Leftist version), but their advocacy of secession today. Fighting against the demonization of the Confederate Heros, the Confederate Flag, and the South in General is an important battle in the culture wars. The demonization of “Yankees” and the idea that the South would be any better off if it seceded today is impractical and absurd. Sam Francis summed up the problems up in his excellent Chronicles article “An Infantile Disorder” (http://lrainc.com/swtaboo/taboos/sf_infan.html)
It’s a pleasure to read a piece by Sam Francis where he’s not being angry but just making a good, sensible argument, written in his well-crafted sentences. His argument is a strong one, that while the neo-Confederate movement has no chance for success, it would be damaging in preventing whites across the country from banding together to preserve our shared culture. Sam has always been much more “national” and patriotic than some other paleocons.
I also note that he makes a criticism of the neo-Confederates that I’ve made here—that they have reincarnated the irrationalism and fanatical spirit of the original fire-breathers.
You can claim that, but the south wasn’t. The South wasn’t claiming that it was seceding because it had an unlimited right to do so; it was seceding on the basis that its freedoms were being threatened. Accordingly, it was claiming the same right of secession invoked in the Declaration of Independence — that it had legitimate grievances which justified splitting itself off from the Union.
I am saying that the south’s argument was terrible. No rights were be threatened; they were seceding without good justification.
I never claimed that the federal government had the authority to outlaw slavery in the southern states. However, it DID have the authority to regulate slavery in the federal territories, and the south consistently denied this. My argument is based upon the fact that THE SOUTH WANTED TO REGULATE SLAVERY BEYOND ITS BORDERS.
This was the biggest cause of conflict. The north held more political power in the federal government, and this meant that the south was losing battles. It became angry over this and seceded, claiming that its fundamentally rights were being threatened. This wasn’t true; the south was depending upon an invented right to take slaves into the federal territories. In that sense it was very similar to the ‘right to privacy,’ another imagined right.
What’s emerging from the Bubba-Courrèges exchange is the idea that at the time of secession the Southerners’ justification was that they were rebelling against tyranny—which was absurd, since the only “tyranny” that had occurred was the lawful election of a U.S. president. Then, when the firebreathers were re-incarnated in modern America under the tutelage of libertarian anarchists like Rothbard and Rockwell, a new Confederate justification was introduced, even though it hadn’t actually been used by the Confederates: that the United States of America was an at-will contract dissolvable on the whim of any party—also a ridiculous, terrible argument.
However, the idea that the latter argument was not used by the Confederates may be questioned since Lincoln (in his statement to Congress of July 4, 1861) specifically attacked the idea that the Union was dissolvable on the mere motion of any state. However, it’s also possible that Confederates themselves had not made that argument, and Lincoln was not responding to their argument but just showing the illegality of what they were doing.
Perhaps in the narrow legal sense the Confederates did advance the argument that secession was an absolute right. However, if they had made that argument alone, without giving good cause for secession, they would never have been able to secede because the move would have then lacked support. Indeed, it seems foolish to think that the south was advancing the notion that they should secede without any fundamental violations of their constitutional freedoms.
I believe this is, in fact, what Lincoln argued in his July 4th address — “The little disguise that the supposed right [to secession] is to be exercised only for just cause, themselves to be the sole judge of its justice, is too thin to merit any notice.” Was there really just cause? Not by any reasonable standards, but the south still claimed that it needed it as a matter of a principle.
Mr. Courrèges’ analysis of the South’s thinking reminds me in a roundabout way of the Supreme Court’s reasoning in Grutter v. Bollinger. They needed some color of justification for race preferences, but previous decisions had outlawed justifying race preferences on the basis of an attempt to achieve racial equality and racial justice. So (following Powell’s dictum in Bakke) they came up with this specious idea that racial discrimination was justified by the need to attain some amophous “educational benefits” resulting from a diverse student body. It’s absurd and ludicrous on its face, yet it’s accepted by everyone as the justification for race preferences.
The South intended to secede, but didn’t feel that the claim of an absolute right to secede on any whim would be an acceptable justification. So they came up with this specious argument that the North was exercising tyranny over them by electing a president, and that gave them the right to secede. It’s absurd and ludicrous on its face, but they needed some excuse, and there it was. And before you know it, they were comparing their secession from the Union with the colonies’ declaration of independence from Great Britain (which, by the way, only came after 14 months of war between the colonies and Great Britain).
I forget the historian who said that the Anglo-Saxon peoples have a need to justify their actions by some color of legality, no matter how forced and tortured the reasoning may be.
Sorry, Owen, but you’re just wrong. The case for secession COULD NOT rest simply upon the South’s fear for their liberties. If that were so, their defense would have been:
States do not generally have the right to secede, except for when they feel their liberties sufficiently attacked.
But that is manifestly NOT what the South argued. The southern States argued that they had the right to secede based solely upon the compactive nature of their league with the other States. The compact between the States was at base a simple contractual arrangement, they said, vacatable at will. It was this that the North denied. Lincoln, following the (sophistical) arguments of Justice Joseph Story, claimed that the Union preceded the States in existence, and that the United States was a Union of the whole people rather than (as is clearly represented by the name) their States. Consequently, the States had no right to secede, since they were not the true parties to the contract. (There was more to it than that, but space here is limited…)
Here is some source material, if you’d like to read it:
Joseph Story’s “Commentaries on the Constitution”
(This was basically the official party line of the Federalist (i.e. big-government, liberal) Party in the early and mid-19th century. Story was a favorite colleague of Justice John Marshall, and his Commentary was widely celebrated as a work of genius. But then, so is Das Kapital…)
Abel Upshur’s “A Brief Inquiry into the True Nature and Character of our Federal Government”
(This is a response to Story’s Commentaries by the man who would later become John Tyler’s Secretary of the Navy and then Secretary of State.)
I’d also point out, in case you’re not aware of it, that several States, including Massachusetts in the north, had already threatened to secede several times over the course of our nation’s early history. They did so based upon the same principle that the South later claimed: that they were parties to a contract who were now exercising, or threatening to exercise, their rightful option to withdraw. None ever did so, of course, but the point is what they based their claim on. The crux of the legal issue was not the fact that they were mad as hell and weren’t going to take it any more. Of course they were. That went without saying. Their legal justification rested upon the nature of their Union with the other States.
P.S. I’ve got lots and lots more source material if you’d like to read it. What most people know about this era that just ain’t true is mindboggling.
Sorry. I thought I should add this as well. The links I posted above cover the issue in detail, but here is the actual Article of Secession from the State of Virginia as an example. In it there is no mention of slavery, or even in a general way of threats to Virginians’ liberty:
And now let me lash myself with a thousand wet noodles. Owen, you’re right as regards the actual Articles that were drafted. Those, just as in the one I have posted (contrary to my claim), do for the most part declare in a general way the fact that injury has been done to the people of said state and that that is why they feel compelled to secede. They also declare that that injury involves slavery. However, my underlying point still stands: whether or not they cared to list their reasons for seceding, the case for secession as a legal matter did not and could not rest upon anything having to do with slavery per se. It is a straightforward legal matter involving the nature of the American compact.
I still disagree. The legal argument was a cover, obviously, which is why it lacked any serious merit. The true overriding issue was that of slavery; the south wouldn’t tolerate abolitionist victories in the federal government regardless of whether they actually infringed on Constitutional freedoms or even the integrity of slavery as it then existed in the south.
If the Confederacy had contended that states had a right to secede whenever they wished as a legal matter, then they would have lost the argument on the popular front. The south didn’t like the north, but its citizens weren’t going to tolerate such explicit radicalism. They required justification based upon violations of fundamental rights, and since no such violations existed, the south’s leaders crafted a farcical one.
while i agree with your understanding of the compact between the states, and thus a state could secede for what ever reason the seceeding state saw fit, why do you think that tariffs did not play a significant role?
or to put it another way, what role did lincoln carrying out henry clay’s merchantilist american system have to do with the south seceding? didn’t they see lincoln becoming president as a direct economic threat to the south?
Are you sure that slavery is not mentioned here? I am a Ph.d student in Southern History and would love to debate this issue with any apologist. Read it again and tell me there is no irritation concerning slavery… Let us see some objectivity here!
AN ORDINANCE to repeal the ratification of the Constitution of the United States of America by the State of Virginia, and to resume all the rights and powers granted under said Constitution.
The people of Virginia in their ratification of the Constitution of the United States of America, adopted by them in convention on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and eighty-eight, having declared that the powers granted under said Constitution were derived from the people of the United States and might be resumed whensoever the same should be perverted to their injury and oppression, and the Federal Government having perverted said powers not only to the injury of the people of Virginia, but to the oppression of the Southern slave-holding States:
Now, therefore, we, the people of Virginia, do declare and ordain, That the ordinance adopted by the people of this State in convention on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and eighty-eight, whereby the Constitution of the United States of America was ratified, and all acts of the General Assembly of this State ratifying and adopting amendments to said Constitution, are hereby repealed and abrogated; that the union between the State of Virginia and the other States under the Constitution aforesaid is hereby dissolved, and that the State of Virginia is in the full possession and exercise of all the rights of sovereignty which belong and appertain to a free and independent State.
And they do further declare, That said Constitution of the United States of America is no longer binding on any of the citizens of this State.
This ordinance shall take effect and be an act of this day, when ratified by a majority of the voter of the people of this State cast at a poll to be taken thereon on the fourth Thursday in May next, in pursuance of a schedule hereafter to be enacted.
Adopted by the convention of Virginia April 17,1861.