In Sandefur and Federal Supremacy I made the point that according to Sandefur's argument, “slavery is completely irrelevant” to the question of the Civil War, because “[a]ccording 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.”
Just came across Sandefur's reply, Half-point for Kinsella. Sandefur quotes the above, and says I am correct. But then he says I only get it half-right, since I omit the second step--of whether a criminal secession is "justified". Writes Sandefur: "In my view, criminal conspiracies are sometimes justified—that is, when they are acts of legitimate revolution. For instance, the framers signing the Declaration of Independence in 1776 were engaged in a criminal conspiracy, too. But in that case the criminal conspiracy was justified because it was an act of revolution.
"So we have to go to the second question—given that secession was illegal, was it a legitimate act of revolution? At that step, slavery becomes relevant, because it is what shows that the secession of 1861 was not a legitimate revolution."I find this reply to be slippery and disingenuous. (I emailed Sandefur to give him a chance to correct my understanding of his views, but he has not done so.) According to his theory, whether or not the Southern States had slavery, their act of revolution was not justified. Suppose all the Southern states had abolished slavery and then seceded anyway. Sandefur would maintain that the secession is criminal, unconstitutional, and not justified--because it is not in response to a long train of acts of despotism, tyranny, or abuse by the Union.
So Sandefur is wrong: I understand his argument has a second step. First, you ask if secession is a criminal act (Sandefur says yes); then, you ask if it's nevertheless a justified act of revolution. Sandefur answers this latter question "no" because there are no grounds for revolution. Why? Because there was not tyranny by the feds, no "long train of abuses." Anyway, how can a state imposing tyranny (by having slavery) claim to be revolting from tyranny? They don't have "clean hands". But even by this logic, slavery just helps to prove that a revolution is not justified; but it is not justified anyway, even if there was not slavery. Why doesn't he just admit that slavery is irrelevant to his argument?
I think the reason is that he needs the slavery argument in order to justify getting righteous and saying that millions of deaths is justified to stop the horrible scourge of slavery--which sidesteps the truth that, by his argument, if slavery had been abolished in the South already (and the Union as a whole), and the South tried to secede, his legalistic view is still that the Union could use force to stop it the secession, and presumably kill hundreds of thousands of people to stop it--so he endorses all this killing whether or not there is slavery to stop. In other words, it's all about preserving the state, the government, the Union, at any cost, whether or not there is slavery. Sounds a lot like Abe Lincoln, except that Lincoln said he would keep, or abolish, slavery, as long as it was necessary to preserve the Union.
Moreover, if this is his theory, I cannot see how he thinks the original American secession from Britain was a justified revolution. After all, here we had a revolt of thirteen slave-holding colonies from the non-slave Britain; and it is doubtful that the secession was a justified revolution anyway. As Joe Stromberg wrote me privately, "Actually, on his argument, the American Revolution was entirely unjustified. [...] I mean, how high were taxes? Admittedly, there was some concern about Parliament's claim to 'bind the colonies in all things' and their tinkering with the court system, but these dangers were down the road, and would it not be enough to call the revolutionaries 'paranoid'? Plus, a good many of these anti-British agitators were slave-owners, and not just in the South!"
How Sandefur can support the original US revolution but not that of the South is a puzzle.
As Tom DiLorenzo mentioned to me by email, Sandefur is "merely repeating what Harry Jaffa taught him when he was a Lincoln Fellow at Claremont. The fact is, if your supposed right of secession is subject to the approval of some armed gang, then you really have no such right, ever. I think all the talk about justified and unjustified 'revolutions' is semantic gibberish invented by Jaffa. I've never run across this in all the reading I've done of the founders; the only place I've ever seen it is in Harry Jaffa's writing and in that of his followers like Sandefeur.
"The Union was a voluntary union, just like your marriage. According to the Jaffa and Sandefeur logic, unless your wife abused you severely for years and years (or some arbitrary time determined by Jaffa), she would have the right to kill you if you ever filed for separation, let alone divorce.
"During my debate with Jaffa he was asked repeatedly by members of the audience if there was ever a justification for secession and he said no. Even [a prominent libertarian who is sympathetic to government], who was there, looked befuddled by this. Sandefeur is trying to squirm his way out of the corner you painted him into."