Sandefur and Federal Supremacy

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Some LRC readers may recall a debate in the pages of Liberty magazine and various blogs, concerning libertarian attorney Timothy Sandefur’s pro-Union views on the War Between the States. It started with Sandefur’s July 2002 article Liberty and Union, Now and Forever, which elicited various libertarian critics (including mine). Sandefur responded in his December 2002 Liberty article Why Secession Was Wrong; some libertarians, including Joseph Sobran and myself, hit the ball back over the net, and Sandefur has posted yet another response to these and other critiques on his web site.

Readers interested in the sordid details can peruse these links. However here I want to make a narrow point. Sandefur repeatedly points to the evil of slavery and the need to end it as justification for the war. For example, he writes, admitting his hyperbole, "slavery is so evil that it was worth all the awful depredations of the Civil War to end it, and would have been worth more".

And yet he states the essential issue as follows: "The question of the Civil War is really two questions: first, Is there a Constitutional right to secede? If the answer to the first question is no (and it is), then the second question is, Was the South engaging in a legitimate act of revolution?"

He concludes that there is no constitutional right to secede (for reasons which are not relevant here). In other words, a State may leave the Union only: (a) with the permission of Congress; or (b) via a "legitimate act of revolution". Otherwise, if a State tries to quit the Union, the Federal government may use armed force to stop what Sandefur terms a "criminal conspiracy".

Since Congress obviously did not consent to the Confederate States’ secession, the question is whether it was a legitimate act of revolution. Now Sandefur states that it was not, because "the Southern states could not legitimately claim a right to revolt in defense of slavery". Revolution is an act in defense of rights, therefore, secession in furtherance of the violation of rights (slavery) is simply not revolution. The South was not responding to aggression by the North, and "its firing on Fort Sumter was therefore an initiation of force. The President being Constitutionally required to see that the laws — including the Supreme Law of The Land — be enforced, Lincoln was therefore right to enforce the Constitution, at point of arms, if necessary."

Note how Sandefur neatly links his passionate opposition to slavery and its moral justification for the war, to his theoretical framework regarding the constitutional right to secede. According to Sandefur, a state can secede if it gets permission from Congress; or if it is engaged in a legitimate revolution. However, a state seceding for the purpose of upholding slavery is not engaged in a legitimate revolution. In fact he tries to explicitly link slavery to the question of the legitimacy of revolution: "It is true that slavery is immaterial to the question of whether secession is Constitutional. But if we answer that question in the negative, we move to the second question [of whether there is a legitimate revolution]: and in that discussion, slavery is central."

But what I wanted to point out is this: slavery is completely irrelevant to Sandefur’s argument. Here’s why. Sandefur repeatedly states that legitimate revolution is one that is in response to invasions of rights by the federal government. As he writes, "revolution is justified only as a form of self-defense against rulers who have engaged in a train of abuses and usurpations against those individual rights which just governments protect. This alone distinguishes an act of revolution from a mere criminal conspiracy."

According to this theory, even if none of the United States had had slavery in 1861, it would still have been a "mere criminal conspiracy" for the South to secede, without permission from Congress. This is because the South, according to Sandefur, would not have been "able to point to a long train of abuses pursuing the design of reducing them to despotism". In other words, even if slavery had already been abolished, the Union would be justified in using armed force to subdue a seceding State, unless the State was engaged in "revolution" in response to acts of "despotism" by the Union.

Sandefur’s real position is that, barring acts of despotism by the central government, it may legitimately use armed force to prevent the secession of its States. This view would find even fewer libertarian adherents which is, I venture, the reason why he focuses on the evil of slavery — to mask the true implications of his theory.

Stephan Kinsella [send him mail] is an attorney in Houston. His website is www.StephanKinsella.com.

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