Libertarians and the Civil War

More on Slavery , the Civil War, and Libertarians

Randy Barnett • July 18, 2013 10:29 am



Kudos to Jacob Levy on Bleeding Heart Libertarians, and Ilya (here and here) and Jonathan (here) for their trenchant critiques of the Neo-Confederate sympathies of some who call themselves libertarians. I agree with Jacob that this is an issue more important for libertarian activists and intellectuals to forthrightly address and forcefully reject than are other pathologies (e.g. birtherism) typically arising at the fringes of ideological movements:



Confederatistas aren’t ignoring libertarian principles or classical liberal arguments altogether. They’re (IMHO, of course– sprinkle imputed “IMHOs” as liberally through this post as you like, since I’m talking about my own priorities and not about the world) misusing them, abusing them, drawing the wrong lessons from them, prioritizing them badly. And they’re doing so in a way that runs deep in American political culture and history, not in an irrelevant fringy way.



In my view the Confederatistas perpetuate the white southerners’ two-century-long scam of dressing up the cause of racial dominance in classical liberal clothes, perverting the goal of liberty into the project of slavery. This has been a defining fact of American political life; it has served to discredit some of those classical liberal values and institutions, while also perpetuating a story in which the freedom of African-Americans (postbellum as well as antebellum) lies somehow outside the calculus of American liberty.



I recommend you read the whole thing — especially if you consider yourself to be a libertarian. I know from my own history in the libertarian movement that there are pockets of libertarians who accept this type of Southern revisionism. I have myself been criticized by these folks as a “nationalist” libertarian because I accept the Fourteenth Amendment as good law that ought to be followed (far more than it is) despite it being inimical to states rights.



To their excellent posts, I wish to add a few additional considerations that I have become aware of over the past several years as I have researched and written about “abolitionist constitutionalism” and the career of Salmon P. Chase.



◦The Republican party was formed as the anti-slavery successor to the Liberty and Free Soil Parties. It was the election of the presidential candidate of this party with its anti-slavery platform that precipitated the South’s initiation of force against federal troops and facilities — not a dispute over tariffs. Slavery was deeply involved in both the formation of the Republican party, which supplanted the Whigs due to this issue, its election of a President on its second try, and the Southern reaction to this election, which directly precipitated the Civil War.

◦However, unlike more radical abolitionists like Lysander Spooner, the Republican party platform insisted that the federal government had no legal power to end slavery in any of the original 13 states in which it still existed. In this way, though it opposed the extension of slavery, the Republican platform respected states rights. (From this it is wrong to conclude that anti-slavery “moderates” like Chase or Lincoln were any less opposed to slavery than radicals like Spooner; but only that they recognized constitutional limits on the federal power to abolish it within the original states — a view of the Constitution they shared in common with such radical abolitionists as Garrison and Phillips.) In this sense, because Republicans pledged to respect the “states rights” of the South, the South had no cause to secede on that basis.

◦But the Republican party also believed that it was within the power of Congress to abolish slavery in the District of Columbia, in the territories, and in other federal enclaves as well as on federal construction projects, a view having nothing to do with “states rights,” and that seems an eminently reasonable, if not patently correct, constitutional stance. The principal response of the Slave Power to this theory was the early invocation of the Fifth Amendment’s Due Process Clause. The South rightly feared that these and other undoubtedly constitutional Republican federal programs would erode its ability to maintain slavery over time. (Mill makes this point effectively in the excerpt reproduced by Ilya below.)

◦As others have correctly noted, the Slave Power was enthusiastic about using federal postal power to suppress the distribution of abolitionist literature in the South, and the Necessary & Proper Clause to enact the Fugitive Slave Act of 1850. Indeed, the defense of the constitutionality of that statute by Justice Story in Prigg v. Pennsylvania offered a reading of the Necessary & Proper Clause that was sweeping in its scope, essentially empowering Congress to enforce any right that might be recognized anywhere in the document. It was “constitutional abolitionists” like Chase who argued the rights of Northern state to protect the rights of their freeman from wrongful kidnapping by slave catchers, a right that was overridden by federal the Fugitive Slave At of 1850 that Southern states demanded. The Slave Power also pushed heavily to extend slavery to new states formed from the territories, by violent extralegal means, as well as to militate to extend their slave system to Cuba by conquest.

◦The political appeal of the Republican party among Northerners, many of whom shared the racism of their day, was based in part and for some on the recognized injustice of slavery, and in part and for many on a quite justified fear of Northerners that slavery would eventually be imposed on them by the South (Lincoln’s “House Divided” speech was about this). When Dred Scott protected the right of Southerners to take their “property” out of their states and into federal territories it seemed a very short step before they could take their “property” into Northern states, as indeed Southerners did and favored a right to do.

◦It is true that Lincoln loudly protested that his aim was to protect the Union not to abolish slavery in the states where it already existed. First, neo-Confederates who stress this seem not to realize that, if believed, like the Republican party platform, this pledge undermines the “states rights” justification for secession. Second, remember most Republicans did not believe that Congress had power under the Constitution to abolish slavery in one of the original states that retained it, which is why the Emancipation Proclamation was justified under the war power as a war measure. Third, Lincoln was gravely concerned with keeping loyal border slave states in the Union so as not to fatally undermine the war effort. Finally, Lincoln was himself a former Whig and moderate late-comer to the antislavery cause, which is why he was distrusted by the radicals in Congress and by abolitionists. Indeed, he kept Chase in his cabinet far longer than he wished because Chase was the administration’s link to the radicals, who would have been up in arms had Chase been dismissed (leverage that Chase enjoyed exercising).

For all these reasons, there is little question that the Civil War was “about slavery” and more relevantly was decidedly not about states rights. This was even more true of the South than it was of the North, which held mixed views on the slavery question. But given that the Republican party supplanted the Whigs on the slavery question, there is little doubt that with Lincoln’s electiion Northern policies were about to turn antislavery, while not directly threatening the existing slave regimes in the South. That this was not good enough for the South shows just how ambitious was their slavery agenda for the country, how rabidly pro-slavery their political establishment had been, and how little their motives stemmed from states rights.



If all this was not bad enough, after losing the Civil War, the Southerners engaged in a campaign of violent terrorism and massacres against the freed blacks and white Republicans and unionists in the South, while reimposing slavery in all but name using every legal device in the book. Thus, even the war did not fully end the Southern commitment to racial subordination, which lasted in virulent form into my lifetime.



With due allowance for the “no true Scotsman fallacy,” any person calling themselves a “libertarian” who puts themselves on the Southern side, whether intellectually, emotionally, rhetorically or symbolically, is either a sadly misguided or misinformed libertarian, or not really a libertarian at all.



UPDATE: If you want a terrific read on how the “political abolitionists” formed the Liberty, Free Soil, and Republican parties, I highly recommend:





My work (linked to above) adds to Sewell’s by examining the constitutional arguments of this group of political activists (and others like Lysander Spooner who eschewed politics), a group that was once called the “constitutional abolitionists” because they maintained that the Constitution was antslavery — or at least consistent with the antislavery political platform of the Republicans — in contrast with the “radical abolitionists” like Garrison and Phillips, who rejected politics and contended that the Constitution was a “covenant with death and an agreement with hell.”