Rebuttal  

Freedom and the Wolves

by Timothy Sandefur

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"No . . . law denying or impairing the right of property in negro slaves shall be passed." — Constitution of the Confederate States of America, Sec. IX cl. 4

"Though it cost the blood of MILLIONS OF WHITE MEN, LET IT COME. Let justice be done, though the heavens fall." — John Quincy Adams (on the possibility of war to free the slaves)

Although I am honored by Joseph Sobran's compliment, that I make "a better case" against the Confederacy than Lincoln did, I must decline it. My articles have done little more than reword Lincoln's July 4, 1861 message to Congress.

Unfortunately, Mr. Sobran seems to lose track of the philosophical foundations of federalism. The purpose of federalism is not to protect the rights of states, but the rights of the individuals who make up the states. As Madison asked in Federalist 45, "Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?" While Mr. Sobran's answer would appear to be yes — the essential political goal is the protection of state sovereignty — the Constitution's framers answered no.

The idea that America is not a nation was quite popular among the fire-eaters who would later advocate secession. I think James Madison, John Quincy Adams, Frederick Douglass, and others put that argument to rest far better than I ever could, so I will simply refer the reader to their writings for a response. As Madison said, "It seems strange that it should be necessary to disprove this novel and nullifying doctrine. . . . What can be more preposterous than to say that the states as united, are in no respect or degree, a Nation . . . altho' acknowledged to be such by all other Nations & Sovereigns, and maintaining with them, all the international relations, of war & peace, treaties, commerce, &c . . . [?]"

Sobran writes that only as a result of the Civil War do we look upon Maryland or South Carolina as component parts of the federal union, instead of "free and independent states." It is ironic that Mr. Sobran uses this phrase; it comes from the Declaration of Independence, which declared that "these united colonies are free and independent states." The states did not declare independence from each other when they declared independence from England; they declared themselves independent as a single political unit, vesting federative power (part of the executive power) in the Continental Congress. The Declaration goes on to explain that "as free and independent states, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which independent states may of right do." But, of course, none of the states did any of these acts upon independence — only the Continental Congress ever did. This is one reason that, in Lincoln's July 4 address, he argued that the union predates the Constitution; that the Declaration (which Jefferson and Madison called the "fundamental act of union of these States") created the union first, and that the states derive their existence from it.

I have not embraced this more Websterian view of the union. Instead, I have taken the Madisonian view that while the Articles of Confederation was a sort of treaty between essentially independent states, the Constitution of 1787 reconstituted the sovereignty of the union and the states. This accounts for the fact that, while the Articles begin "Articles of Confederation and perpetual Union between the states of. . . " and immediately remind us that "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled," the 1787 Constitution begins very differently. "We the people of the United States . . . do ordain and establish this Constitution." The Constitution is, as I have explained at length, a union of the people, not of the states. Although I thus differ from Lincoln, I have not discussed hitherto this difference in detail because it is both complicated and irrelevant. Whether or not the Treaty of Paris or the Articles of Confederation recognized the states' independent sovereignty does not change the fact that the Constitution of 1787 is a compact between the people of the United States, not a treaty between the states. On this point, Mr. Sobran argues that the Constitution must not prohibit secession because, had the states been presented with that option, they would have refused it. Or, as one reader put it, "I wonder how Sandefur would parse his way around this statement by Shelby Foote: 'If any of the original states ratifying the Constitution had the slightest idea that if they joined this new government they wouldn't be able to leave it again, not one would have joined.'" Of course, the statement requires no parsing — it is the opinion of a 20th century Southern historian, who is not a lawyer or an expert on the Constitution, and who, though old, was not a contemporary of the founding generation. Most importantly, the statement makes the same essential error that all defenders of secession make: it assumes that the "states" ratified the Constitution. They did not do so. The people of the United States ratified the Constitution. The states cannot therefore "leave" the union since they did not "join" it. The Constitution is a government of the people, not a treaty between sovereign states. The people who did ratify the Constitution were presented with precisely that decision — and they did ratify it. It fell to the generation that followed ratification to argue that, contrary to its plain language, contrary to the Federalist, contrary to the explanations in the ratification conventions that the Constitution "will be then a government established by the thirteen States of America, not through the intervention of the Legislatures, but by the people at large . . . [a] distinction . . . [which] is very material" — that the Constitution was not a government after all, and America not a nation; that the states created the federal government and that they were as independent as they had been under the Articles of Confederation.

It is true that the Constitution's proponents did not deny — nor do we yet deny — that it leaves some sovereignty in the states. But the most essential feature of the Constitution is divided sovereignty. The states are sovereign in their own capacities; the federal union is sovereign in its capacity. They are separate entities whose social compacts are separately binding on the citizen — just as the electric company and the water company send a customer different bills. The electric company has no authority to absolve him from paying his water bill; so, too, the states have no authority to absolve him from his allegiance to the federal union. Mr. Sobran does not discuss divided sovereignty, but seems to think that the federal government must be either a treaty between the states, or a total consolidation of them. Justice Bushrod Washington explained divided sovereignty very succinctly: "the general government derives its existence and power from the people, and not from the states, yet each state government derives its powers from the people of that particular state. Their forms of government are different, being derived from different sources; and their laws are different." Or, as Justice Kennedy put it more recently, "The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it. . . . [T]he National Govern-ment, the mark of its legitimacy, is that it owes its existence to the act of the whole people who created it."

This concept of divided sovereignty accounts for the plural usage of "the United States" coexisting with the singular usage. The states are independent in some respects, as Federalist 45 explains. But in other respects, they are not. The union itself is one of these latter respects — no state has the authority to break it because states are not parties to the compact. The compact is between "we the people," not between "we the states," as I have explained at exhausting length.

Sobran appears to have missed my point with regard to the so-called "reservations" of the "right to secede." Several people have argued that if there can be no conditional ratification, then the three states which (Sobran claims) passed such "conditional ratifications" must never have been in the union to begin with. I do not know that anyone, including the most ardent defender of secession, really believes these states did not ratify the Constitution to begin with. If, indeed, these states passed such things, it would have to be the condition which failed. But I deny that what these states passed were "conditional ratifications." Let us once again examine the alleged reservation. The only state which passed such a "reservation" and which later seceded was Virginia, whose "reservation" read: "The powers granted under the Constitution being derived from the People of the United States may be resumed by them whenever the same shall be perverted to their injury or oppression." Note that this nowhere refers to any power of Virginia to secede, nor to any unconditional right to revolt for any reason the state sees fit. Rather, this is simply a restatement of the Declaration's premise that whenever government "becomes destructive of [life, liberty, and the pursuit of happiness], it is the right of the people to alter or to abolish it" — that is, as an act of self-defense, the people may "resume" the "powers" granted under the Constitution. Since federal powers were not being "perverted to the injury or oppression" of the people of Virginia, their secession cannot be justified as an act of self-defense. Moreover, this "reservation" acknowledges that the Constitution derives its power, not from the states, but from the people of the United States, so that the power to "resume" is left in their hands, not Virginia's.

Thus, when we actually read the documents to which Mr. Sobran refers, we see that they reserved not a "right to secede," but the right of revolution. As I pointed out in my last article, it is the failure to distinguish these two things which causes many libertarians to misunderstand the Civil War. Nobody, not even Lincoln, denied that the right to revolution is a right which people, including Southerners, possess at all times; it is inalienable. It is, however, a right of a certain nature. It can only be exercised in self-defense; otherwise it is not a revolution, but an initiation of force. What is the difference between a revolution and an act of crime? Not mere force of numbers. According to libertarianism, revolution is self-defense writ large. It is the use of force in defense of individual rights. Crime, on the other hand, is the use of force when one has no right. A robber may not excuse himself for shooting the policeman who tries to arrest him by saying that his was an act of revolution. Libertarianism is thus not inherently opposed to the enforcement of the law — as Locke put it, "the end of law is not to abolish or restrain, but to preserve and enlarge freedom. . . . For who could be free, when every other man's humor might domineer over him?" A law is just and enforceable when it preserves freedom; but when the law enslaves us, we have the right to break it. This is the difference between the American Revolution (begun after a long train of abuses evinced a design to reduce America under absolute despotism) and a communist revolution, which has as its primary goal the infringement of the rights of others. The former is an act of self-defense; the latter is not. The former is revolution; the latter is crime.

On which side of this spectrum does the Confederacy lie? I have argued that it falls on the latter, because the "right" which the South sought to vindicate was the right to enslave others without interference from Washington, D.C. Such a right cannot exist; it is an initiation of force. Any alleged "revolution" to defend that "right" is in reality a form of theft. This is why Lincoln said that we need to be clear about our definition of liberty:

"We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men's labor. Here are two, not only different, but incompatible things, called by the same name — liberty. . . . The shepherd drives the wolf from the sheep's throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the same difference prevails to-day among us human creatures, even in the North, and all professing to love liberty. Hence we behold the processes by which thousands are daily passing from under the yoke of bondage, hailed by some as the advance of liberty, and bewailed by others as the destruction of all liberty. . . . "

Libertarians simply must be on the side of the sheep, and not the wolves.

I do not see the connection between Lincoln and the modern national debt, which is a relic of Progressive, New Deal, Great Society, and Reagan era economic policies. I do not defend the welfare state; what I deny is that the secession of 1861 was either constitutional, or a legitimate act of revolution. Deficits are irrelevant to that question. Of course, war costs money and lives; it is "all hell." This is why libertarians seek to avoid war. And, as a libertarian, I hardly deny that a child born today is in many ways less free than a child born in 1850 (assuming we're talking about a rich, white child!). Not only have I never denied that we are in a terrible fix today, but I have gone so far as to say that I think the founders would have considered armed rebellion against the federal government today as far more justified than was the secession of 1861. But that is not the question here. The question here has two steps: 1) Was the secession of 1861 constitutional? I have answered no, because the Constitution is binding on the people, and cannot be abrogated by a state. 2) If the answer is no, then was the secession of 1861 a legitimate act of revolution? Again, I have argued that the answer is no, because revolution can only be justified as an act of self-defense.

Sobran's other arguments only restate positions I have attacked. He makes no attempt to explain the compacts clause, the preamble, or the many other parts of the Constitution to which I referred in my articles; he does not refute the passages from the Federalist and Antifederalist Papers, the speeches in the ratification conventions, or other documents to which I referred, but argues only that the Constitution does not proscribe the alleged "right to secede." And his explanation of the guarantee clause begs the question. My point was that if a state can unilaterally secede, the guarantee clause is a vain and idle enactment. Mr. Sobran's explanation, that the clause binds only those states that have not seceded, is essentially like saying that the law prohibits a person from doing an act, unless he chooses not to obey the law, whereupon the law cannot bind him, so his act is not illegal. In other words, "You shall not do this act unless you choose to do it." That logic makes no sense to me.

At this point it may be said, as one reader put it, that I am "thinking like a lawyer." Of course I am; the Constitution is a law. If an electrician were to tell you that a toaster will not work on "flower power," you would not say to him, "You are only thinking like an electrician! Widen the scope of your mind!" We must know what the law is, before we can say what it ought to be.

But then Mr. Sobran shifts his focus to the extremity of Lincoln's war tactics. I have never argued that all of these tactics were justified; I do not believe that I, a century and a half after the fact, can form a clearer judgment on tactics than the people who were, at the time, fighting the war, and I have resisted the impulse to play armchair general. Were I to do so, I am sure I would disagree strongly with many things that Lincoln did in prosecuting the war. I have not mentioned the military draft, for instance, an institution I consider wholly illegitimate on moral, political, legal, and economic grounds — although many people ignore the fact that the Confederacy instituted a military draft, too. That is irrelevant. The question at hand is, was the war itself justified?

The Civil War takes us back to first principles, and the principle of libertarianism is that the state is not inherently legitimate, but derives its legitimacy from the rightful consent of those who create it. This consent is based on the principle that each individual owns himself. William Merritt errs, therefore, when he argues that "people get to throw off real governments for whatever reasons seem real to the people at the time." Libertarianism sees the state, or revolution, as legitimate only insofar as they protect the rights of the individual; a nation based, as the Confederacy was, on the premise of inequality and the right to own others, is not a legitimate nation, but a gang of pirates — organized, perhaps; uniformed and obedient to their captain, but pirates nevertheless. And when pirates attack, as the South did at Fort Sumter, it is the job of those who have sworn to support and defend the Constitution of the United States, to enforce that law. Blood is frequently shed in putting down pirates and freeing their victims. But libertarians have always stood firmly on the proposition that life is not so dear, nor peace so sweet, as to be purchased at the price of chains and slavery.

Mr. Sobran phrases the question by asking whether or not it was legitimate for the federal government to kill people who made war on the Constitution, even to the hundreds of thousands. Likewise, one reader wrote that "[Sandefur's] position seems to be that freeing the slaves trumps everything else — they get more freedom, we get less, but their freedom is more important than ours. . . . [W]hat price would Sandefur have been willing to pay for the immediate abolition of slavery? Apparently, the 600,000 deaths and countless rights violations of the Civil War were not too high a price for him. Would any price have been too high?" To this I have two answers; one rhetorical, one logical.

My first answer to the question, Was it worth 600,000 deaths to free the slaves? is absolutely yes. It would have been worth it at twice that price; indeed, it would have been cheap at a thousand times that price. It would have been cheap if the war had lasted until the present day. It would have been cheap at the price of oceans of blood and mountains of bones. Thomas Jefferson once said, "Were there but an Adam & an Eve left in every country, & left free, it would be better than as it now is," and I have little sympathy with a libertarianism which does not share that estimation, which does not believe that freedom is more important than life, or which can speak of the freedom of "them" as separate from the freedom of "us." We already know how free "they" were in the antebellum South, with its whipping, raping, and lynching; its fugitive slave laws and its curfews; but how free were "we" in the antebellum South? With its lynch mobs, its censorship of the mail, its fatwas against abolitionist writers? How free was a white man who wanted to befriend a black man, or to teach him to read, or to marry a black woman? How free would America have been under the blood-drenched slave codes that Southern states wanted the Congress to pass? Americans, cherishing their libertarian founding, have long believed that freedom is sweeter than life, and I dearly hope they go on believing that. To paraphrase Rose Wilder Lane: if this makes me an extremist, then I'm extreme as hell.

Mr. Sobran inserts his final point, asking whether a child today is not enslaved to the state, for rhetorical purposes, to rile the tempers of libertarians who resent the current state of affairs. This doesn't work, since I share that temper. But were I tempted to, I might imagine a world in which the Confederacy had been allowed to leave the union and declare its independence. We might even imagine, though I am not convinced of it, that by 2003, the Confederacy had abolished slavery. Do we think they would have also abolished Jim Crow, or written the Civil Rights Acts of 1866 and 1964? That they would have abolished the laws against teaching blacks to read? Or legalized the mailing of abolitionist literature? Do we think they would have a black man on their Supreme Court, or a black woman on the Supreme Court of one of their states?

Could we, seeing a little black child on a sidewalk in Atlanta, Georgia, in this Confederate States of America of 2003 — could we congratulate him on enjoying self-government? Or might it be more honest to tell him frankly that, in order to protect the "right" of whites to "govern themselves," and preserve their "peculiar institutions" from federal interference — to protect, that is, the liberty of the wolves — the state of Georgia was allowed to leave the union (in violation of the Constitution) and to have a revolution (in violation of the principles of equality which justify revolution) so as to preserve the right of whites to enslave his ancestors, and to maintain the segregation of the races? Might it not be more reasonable, in such an alternate universe, to say to this boy that our nation's dedication to liberty was less than our dedication to the "right of (the white people of) a state to govern without interference," that our dedication to equality was limited only to the equality of states, and not the equal right of all to the ownership of themselves? That all our talk of freedom was so much tissue, and all our talk of revolution so much war-whooping? Would it not be more frank to say that our nation was not a nation, but a confederated gang of pirates who justified their thievery by appeals to majority rule, and the right of one man to enslave another without hearing any third man object?

Would it not be right to tear the Declaration of Independence into shreds before his eyes, and tell this little boy that America was never a nation based on the freedom of individuals, but freedom of states — that "the American Revolution was effected, the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?"

So much for rhetoric. "Reason, cold, calculating, unimpassioned reason, must furnish all the materials for our future support and defence." My second answer, therefore, comes from thinking like a lawyer. I have laid it out at excruciating length already. The Constitution is a compact between the people, not a treaty between the states. A state may therefore not unilaterally secede from it — a fact buttressed by many other clauses in the Constitution, by the explanations in the Federalist and Antifederalist Papers, by the speeches in the ratification conventions, and by other documentary evidence. Since secession is not constitutional, it must be an act of revolution in order to be justified. It was not, however, an act of revolution in 1861, because the South initiated force, and did so in defense of the ownership of slaves. Since the Constitution is the supreme law of the land, and since the president is constitutionally required to see that the laws be faithfully executed, it fell to Lincoln to enforce the law at point of arms if necessary. Executing the law often requires the taking of lives. When a policeman kills a kidnapper or a murderer, I am saddened at the loss of life, but I do not dispute the legitimacy of the act. So, too, when soldiers attack an organized group of lawbreakers trying to kidnap and murder millions of black human beings, in violation of the supreme law of the land, then I do not dispute the legitimacy of defending the law at point of arms if necessary, whether it be July 4, 1861 or September 11, 2001. "'Let us have peace,'" said Frederick Douglass, "Yes, let us have peace, but let us have liberty, law, and justice first." It is awful that the war came. But Lincoln did not initiate force; the South did, and the blame must be laid on them.

My ancestors fought for the Confederacy. Like other descendants of those brave men, I admire their courage and their willingness to die for what they believed in; I hope no reader will interpret my argument as disrespectful of their memory. But, as Douglass — one of "them" — said in 1878, "we must not be asked to say that the South was right in the rebellion, or to say the North was wrong. We must not be asked to put no difference between those who fought for the Union and those who fought against it, or between loyalty and treason. . . . It was a war of ideas . . . between a government based upon the broadest and grandest declaration of human rights the world ever heard or read, and another pretended government, based upon an open, bold, and shocking denial of all rights, except the right of the strongest." We libertarians all wish the federal government would stop intruding on the powers of the states, or that states would show more resistance to its constant expansion; we wish it would act like what it is — a government of limited and enumerated powers. We wish that the people of today would show as much spirit in resisting government as the Southerners showed in the pursuit of their damned cause. But our enthusiasm for a little rebellion now and then must not mislead us into supporting rebellion for its own sake, or a rebellion which sought to impose the worst deprivations of liberty. Our belief in resistance must not distract us from our primary goal of freedom.

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