February 22, 2012 essays

Why “Libertarian” Defenses of the Confederacy and “States’ Rights” are Incoherent

Blanks argues that there is no good libertarian reason to support the South’s secession prior to the Civil War.

There is a strain of libertarian contrarianism that holds that the Confederate States of America were within their “rights” to secede from the Union. Such contrarianism on this particular topic is detrimental to the larger cause of liberty because the logic of this argument relies upon relinquishing individual rights to the whim of the state. Indeed, as there is no legal or moral justification for supporting the Confederacy in the Civil War, it is impossible that there could be a libertarian one.

The legal argument against secession is straight-forward. Beyond the simple fact that most countries don’t provide for their own dissolution at the outset, the Constitution is not silent on the use of force by the federal government. Article I Section 8 clearly grants Congress the power to put down insurrections, as the South was well aware. As recently as 1859, that power had been used by then-Union colonel Robert E. Lee to put down John Brown’s mindless and bloody raid on Harpers Ferry.

But to support the Declaration of Independence is to support secession. Thus, from the outset, it is nearly impossible to defend the American idea—that the people may separate themselves from an oppressive government in order to govern themselves—without accepting secession as a legitimate political action under certain circumstances, at least. This, however, does not necessarily mean that all secession is justified. In the Declaration, Jefferson writes, “Prudence…will dictate that Governments long established should not be changed for light and transient Causes,” necessarily implying that some separations are indeed imprudent and any such separation should be judged on its individual merits. A predictable and stable adherence to the Rule of Law is the indispensable tenet of any form of just government, and so the dissolution of that government must be preceded by systemic injustice or other reason that appeals to higher or natural law. Without this ordered liberty and deference to individual rights, laws cease to mean anything other than the imposition of will by man upon man.

Because Confederate-secession defenders will not typically make arguments in favor of chattel slavery, they rely instead on the assumption that secession is an unbounded right and thus a state may leave a country for whatever reason it chooses. To accept this premise, one has to bypass moral judgment on the cause of secession, yet affirmatively assign a morality to secession as a matter of preferred political procedure—in common parlance as “states’ rights.” This turns the assumption of individual rights on its head, if the federalist procedure is to supersede the right of exit of any group or individual within that state, as the Confederacy’s slave economy unquestionably did. 

People who imagine themselves free have, in theory, a right of exit if and when they choose to separate themselves from the state in which they live. Suspending for the sake of argument the economic hardships that may entail, the right of one’s own separation—an individual secession, if you will—remains. Except in the Confederacy, where no such right existed for the slaves for which the Southern states unquestionably and proudly seceded.

Mirroring the language and purpose of the Declaration, the Southern states explained to the world the purported righteousness of their actions and listed the reasons why prudence dictated they sever their ties to the American Union. Four Southern states—South Carolina, Georgia, Texas, and Mississippi—made clear their rationale for secession. Simply glancing over these four documents leads the reader to the conclusion that chattel slavery was the primary cause for separation. The following are excerpted from the four declarations of secession.

Georgia:

The people of Georgia having dissolved their political connection with the Government of the United States of America, present to their confederates and the world the causes which have led to the separation. For the last ten years we have had numerous and serious causes of complaint against our non-slave-holding confederate States with reference to the subject of African slavery.

Mississippi:

In the momentous step which our State has taken of dissolving its connection with the government of which we so long formed a part, it is but just that we should declare the prominent reasons which have induced our course.

Our position is thoroughly identified with the institution of slavery— the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth.

South Carolina:

The people of the State of South Carolina, in Convention assembled, on the 26th day of April, A.D., 1852, declared that the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union; but in deference to the opinions and wishes of the other slaveholding States, she forbore at that time to exercise this right. Since that time, these encroachments have continued to increase, and further forbearance ceases to be a virtue.

The ends for which the Constitution was framed are declared by itself to be “to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”

These ends it endeavored to accomplish by a Federal Government, in which each State was recognized as an equal, and had separate control over its own institutions. The right of property in slaves was recognized by giving to free persons distinct political rights, by giving them the right to represent, and burdening them with direct taxes for three-fifths of their slaves; by authorizing the importation of slaves for twenty years; and by stipulating for the rendition of fugitives from labor.

We affirm that these ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States.

Texas:

Texas abandoned her separate national existence and consented to become one of the Confederated Union to promote her welfare, insure domestic tranquility and secure more substantially the blessings of peace and liberty to her people. She was received into the confederacy with her own constitution, under the guarantee of the federal constitution and the compact of annexation, that she should enjoy these blessings. She was received as a commonwealth holding, maintaining and protecting the institution known as negro slavery—the servitude of the African to the white race within her limits—a relation that had existed from the first settlement of her wilderness by the white race, and which her people intended should exist in all future time. Her institutions and geographical position established the strongest ties between her and other slave-holding States of the confederacy. Those ties have been strengthened by association. But what has been the course of the government of the United States, and of the people and authorities of the non-slave-holding States, since our connection with them?

For all the world to see, to justify their actions, and with no less than 82 direct references to slavery or servitude contained in those four documents, the seceding states proudly asserted that slavery—and the perceived threat of its abolition—was the primary and compelling motive for their secession and, consequently, the singular cause for the war. Slavery was not merely a feature of the Confederacy—it was its defining characteristic.

Confederate vice-president Alexander Stephens famously defended the secession and its new constitution in his “Cornerstone Speech,” asserting:

But not to be tedious in enumerating the numerous changes for the better, allow me to allude to one other though last, not least. The new constitution has put at rest, forever, all the agitating questions relating to our peculiar institution African slavery as it exists amongst us the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution. Jefferson in his forecast, had anticipated this, as the “rock upon which the old Union would split.” He was right. What was conjecture with him, is now a realized fact. But whether he fully comprehended the great truth upon which that rock stood and stands, may be doubted. The prevailing ideas entertained by him and most of the leading statesmen at the time of the formation of the old constitution, were that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically. It was an evil they knew not well how to deal with, but the general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away. This idea, though not incorporated in the constitution, was the prevailing idea at that time. The constitution, it is true, secured every essential guarantee to the institution while it should last, and hence no argument can be justly urged against the constitutional guarantees thus secured, because of the common sentiment of the day. Those ideas, however, were fundamentally wrong. They rested upon the assumption of the equality of races. This was an error. It was a sandy foundation, and the government built upon it fell when the “storm came and the wind blew. (emphasis added)

While it would be disingenuous to say that the North began the war with the intent to end slavery, it would be nothing short of delusion to say the South did not fight to preserve both slavery and the white supremacy upon which it relied.

A war for slavery is, by definition, a fight against the individual right of exit. It takes an extraordinary leap for a libertarian to assign rights to a state which are denied to the people or an individual. Properly understood, states have powers, not rights. The fundamental tenet of rights theory is that a man or woman has property in him- or herself and that he or she voluntarily gives up only a small portion of his or her rights when joining a state. The right of exit is indeed a solemn one, but its root lies with the individual, not a body of elites and their self-interested whims.

In nearly every other circumstance, especially dealing with war, a libertarian is often the first to ask cui bono? To whose benefit would war be? What is the real justification for this war? For nearly every other war, the arguments for war are questioned and usually debunked by libertarians, most of whom oppose war under any non-essential circumstance, often stridently. Yet, the idea that the slave-holding elite would separate itself from the rest of the nation to protect its financial interest in holding other human beings as property is, somehow—to some people who espouse the rights of the individual as sacrosanct—lumped in with a fight for freedom?

As an aside: that most soldiers of the Confederacy didn’t have slaves or think they were fighting to preserve slavery is non sequitur. The argument against the South’s actions in the Civil War has nothing to do with the motivations of its soldiers. The blame lies with the actions of the political elite. There are many Americans who went to fight and die in Vietnam who thought they were fighting for the preservation of liberty—when, in fact, they were fighting on an arbitrary side in a civil war that had nothing to do with the United States or its way of life. (That communism makes people less free is a truism, but I’m less convinced the people of Vietnam were better off with civilians subject to napalm attacks and a million war dead during American operations than they were under Ho Chi Minh and the more open style of communism that has defined Vietnam in the five decades hence.) It’s remarkably sad that so many died for a lie, but that doesn’t change the essence of the lie.

The anti-libertarian results of the Civil War are evident. The federal government centralized a great deal of power in the post-war years and that sort of power is well-understood to be very dangerous to individual liberty. Yet, it is not as if the abuse of individual rights by the states ended at Appomattox. For the century following the end of Reconstruction, the southern states (and, to a lesser extent, some northern states) implemented laws and customs which systematically stripped the rights of blacks. From voting rights to freedom of contract and free association, the southern states oppressed their black citizens. This retarded the post-war southern economies—stultifying a portion of the population relegated to substandard educational accommodations and economic opportunities—despite protestations from some apologists that the market would work it all out eventually. Similarly, the Atlantic’s Ta-Nehisi Coates and Slate’s Matt Yglesias show that the economics of and rhetoric supporting the antebellum slave system were thriving, despite claims that the ‘peculiar institution’ was dying for reasons wholly separate from the war. Indeed, most libertarians know that the laws and powers of a state can sustain bad economic policy—seemingly in perpetuity. The states’ abuses of their own people, from the Founding to the 1960s, time and time again replayed the folly of giving the states the power to oppress its own citizens. Laws, custom, and ‘good-enough’ economic growth trumped individual rights and opening the markets to all Americans. There was no guarantee that slavery would end on its own without direct intervention.

As James Madison wrote in Federalist 51:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Experience has also taught us that the individual states too must have a check on their powers, and the power of its elites may not be used to exploit the least powerful citizens. As an innocent but detested minority cannot depend on the beneficence of the majority or its elite institutions, an (albeit imperfectly) neutral federal authority is a better check on the tyranny of the state than no check at all. That the southern states’ particular tyranny was cloaked in federalism is not an argument in federalism’s favor.

Those who defend the Confederacy in the name of liberty today must assume, against all historical evidence, that rationality and economic benefit would have otherwise trumped the exploitation and irrational hate that drove the institution of slavery, the rebellion to defend slavery, and the Jim Crow South to avenge slavery’s defeat. That the Southern states used the power restored to them after Reconstruction to keep their citizens in poverty and deny them their rights as American citizens is the best argument for the federal government in living memory. That this is often used by the Left and others to presume benevolence in directives from Washington is unfortunate to libertarians who believe in a bounded federalism that protects the rights of the individual while providing states the power to be the laboratories of democracy that they were intended to be. Libertarians would better serve the cause of liberty and decentralization by recognizing that absolutes—such as granting the state absolute authority to do as its elites wish—are as sure a road to tyranny as amassing uncheckable power in a chief executive. There is nothing libertarian about granting any government so broad authority in order to quash the fundamental rights of the individual, a power inherent to an unbounded state “right” to secession.

A portion of this essay was excerpted and edited from a 2009 blog post by the author.