Lincoln becomes the American solar myth, the chief butt of American credulity and sentimentality...the varnishers and veneerers have been busily converting Abe into a plaster saint...Worse, there is an obvious effort to pump all his human weaknesses out of him, and so leave him a mere moral apparition, a sort of amalgam of John Wesley and the Holy Ghost. What could be more absurd? Lincoln, in point of fact, was a practical politician of long experience and high talents, and by no means cursed with idealistic superstitions...his career in the State Legislature was indistinguishable from that of a Tammany Nietzsche.
~ H.L. Mencken, "Abraham Lincoln," The Smart Set, May 1920.
Reprinted in A Mencken Chrestomathy, pp 221-23.
Ken Masugi, director of the Claremont Institute's Center for Local Government, writes in Claremont Institute Precepts No. 267 that "Long-time fans of Rush Limbaugh's provocative radio show experienced a shock in a recent program that focused on Abraham Lincoln."
It turns out that Limbaugh was surprised to hear his callers criticize Abe Lincoln as responsible for the growth of federal power, a racist, and indifferent to the plight of the slaves.
The discussion, Masugi notes, grew out of advance qualms over Steven "fundraiser to the Clintons" Spielberg's forthcoming movie on Lincoln. As Masugi observes, the film will allegedly "portray [Lincoln] as a weakling, a racist, and a failure at the presidency."
Limbaugh and Spielberg aside, what's the truth about Abraham Lincoln? And what's the truth about the Confederate States of America and the South?
Allow me to suggest that the truth is quite far from the conventional wisdom. Allow me also to suggest, as indicated by Masugi's article, that the otherwise praiseworthy Claremont Institute goes too far in its adulation of Lincoln.
The Claremont Institute is "otherwise praiseworthy" because, for example, Doctors for Responsible Gun Ownership and the Claremont's Center for the Study of the Natural Law appear to do good things. Also, Mark Helprin (a very good contemporary novelist, and therefore a rare breed; A Soldier of the Great War is well worth reading) and Hadley Arkes (a natural law theorist whose works I have found insightful) are at Claremont. This article should not be interpreted as anything other that what it is: a criticism of the Claremont Institute's treatment of Abraham Lincoln and the issue of secession.
The Claremont Institute's devotion to Lincoln appears deep and widespread. The Institute provides "Abraham Lincoln Fellowships in Constitutional Government" and the Institute's Salvatori Center for the American Constitution has published a plethora of essays praising Lincoln and attacking the right of secession.
As a preliminary matter, it is a general problem with the Claremont writers — including not only Masugi, but Harry Jaffa — that they assume as a given the conclusion which they purport to prove. If the question of the day is whether Abe Lincoln is justified or unjustified, praiseworthy or blameworthy, for his actions from 1860-1865, then Lincoln's own words are not sufficient evidence to acquit Lincoln.
If, in defense of Lincoln, one can call no witnesses but Lincoln, the case for the prosecution looks very strong indeed.
Additionally, in order to judge Lincoln, one needs a standard by which to judge the praiseworthy or blameworthy nature of his actions.
One possible standard by which to judge Lincoln's actions is provided by a great theorist of republican government well-known to Americans in 1861 and 2001: Montesquieu.
Considerations on the Causes of the Greatness of the Romans and their Decline, is noted by its translator, David Lowenthal, as perhaps the least well known of Montesquieu's three works. Despite this fact, Lowenthal adds, the book "may have been the first (and certainly was one of the first) of all efforts to comprehend the whole span of Roman history, and among such efforts it still has few if any peers." (Indianapolis: Hackett Publishing Co., 1999; originally published by The Free Press, 1965. p 1). Lowenthal also writes that
It was probably one of the works Gibbon had in mind in his Memoirs when he wrote: "but my delight was in the frequent perusal of Montesquieu, whose energy of style, and boldness of hypothesis, were powerful to awaken and stimulate the genius of his age...it is one of the few instances when a philosopher has undertaken an extended analysis of any particular society, let alone of its entire history. The only comparable thing on Rome is Machiavelli's Discourses, to which it bears a deep inner kinship." (p 1)
In other words, Montesquieu's Considerations is an important work by an important political thinker.
What standard may one find in Montesquieu in order to judge the actions of Abraham Lincoln? In particular, Montesquieu makes the following observation about the nature of free states:
What makes free states last a shorter time than others is that both the misfortunes and the successes they encounter almost always cause them to lose their freedom. In a state where the people are held in subjection, however, successes and misfortunes alike confirm their servitude. A wise republic should hazard nothing that exposes it to either good or bad fortune. The only good to which it should aspire is the perpetuation of its condition [i.e., its condition as a free state, i.e. its freedom]. (p 92)
The reason for the limited life spans of free republics is the fact that crises and governmental actions — most especially wars — tend to grow the state at the expense of society. Calls for government action are necessarily calls for government power, and governments are not known for their fondness for giving up acquired powers.
The standard by which to judge Lincoln's actions, then, if one is concerned with the nature of America as a free state, is not whether Lincoln abolished slavery or fulfilled the meaning of the Declaration of Independence, but whether he preserved the free condition of the United States.
Two claims made by Ken Masugi, in his various pieces on Lincoln, stand out as problematic:
- "Confederate heritage groups and civil rights groups, who disagree so bitterly about which monument should stand or who was...a hero, actually share major premises about the Civil War...Both sides agree on the prevalent view of American history, debunking Lincoln."
- "The freedom to secede from the Union was equivalent to either anarchy or tyranny, both denials of government by consent."
First, someone should tell the League of the South (of which I am proud to be a member) that a) they're now in the mainstream and b) unnamed civil rights groups agree with them about the causes of the War Between the States. To be blunt, I do not believe that Masugi is correct in his appraisal of the prevalent views of Abraham Lincoln. On the other hand, if he is correct — great!
Second, with respect to the notion that the South denied "government by consent," the great H.L. Mencken ably shredded this notion in his famous critique of Lincoln's Gettysburg Address:
it is poetry, not logic; beauty, not sense. Think of the argument in it. Put it into the cold words of everyday. The doctrine is simply this: that the Union soldiers who died at Gettysburg sacrificed their lives to the cause of self-determination — that government of the people, by the people, for the people, should not perish from the earth. It is difficult to imagine anything more untrue. The Union soldiers in the battle actually fought against self-determination; it was the Confederates who fought for the right of their people to govern themselves. The Confederates went into battle free; they came out with their freedom subject to the supervision of the rest of the country — and for nearly twenty years that veto was so efficient that they enjoyed scarcely more liberty, in the political sense, than so many convicts in the penitentiary.
Mencken's piece was originally published in The Smart Set, May 1920. This was a mere 55 years after the end of the War Between the States. Think of it like a book published today discussing the Korean War. The war was still that recent when Mencken wrote. Reconstruction was even more recent. It had ended only 40 years before Mencken wrote. Think of it like a writer today discussing the Cuban missile crisis.
Worse, as Charles Adams notes in When in the Course of Human Events, Lincoln improperly dated American history in the Gettysburg Address:
To be accurate, Lincoln should have said "four score and two years ago," or better still, "three score and fourteen years ago." Even the Northern newspapers winced. The New York World sharply criticized this historical folly. "This United States" was not created by the Declaration of Independence but "the result of the ratification of a compact known as the Constitution." (194)
Lincoln simply spoke as if the Articles of Confederation had never existed.
Masugi, like Harry Jaffa, contends that "the Civil War was fought over the American proposition first proclaimed in the Declaration of Independence — that all men are created equal." As a necessary corollary of this claim, Masugi contends that
the Confederate view holds that the Declaration of Independence did not include slaves or their descendants and that it provides no guidance for how we Americans were supposed to govern ourselves. The phrase "all men are created equal" was not intended to affirm universal freedom and rights; the whole document was simply a good-bye to Great Britain. Therefore, the Civil War could not have been fundamentally about slavery.
Similarly, in "A Lincoln for all Time — and Our Time," Masugi writes that
"the central idea of secession" involved a rejection of the eternal higher law of the Declaration of Independence, "the laws of nature and of nature's God" and the equality of rights that underlies the Constitution....The true heirs of the Confederacy no longer wear gray — unless in a suit — but they share the Confederates' rejection of a moral truth transcending historical evolution. These latter-day rebels now dominate our universities, foundation boards, and other unelected positions of power. For these post-modern elites the very idea of constitutional government is an unwanted encumbrance on their appetites.
Masgui and Jaffa, then, contend that one part of the Declaration of Independence — "all men are created equal" — absolutely trumps another part — "governments derive their authority from the consent of the governed." Masugi attempts to eliminate the turning of the Declaration against itself by arguing that the South really sought to destroy government by consent. As Mencken noted, however, this claim is false: it was the South which fought for self-determination.
It also must be noted that someone forgot to tell Ven. Pope Pius IX about the Southern rejection of "the eternal higher law," as the Pope thought enough of the post-war persecution of Jefferson Davis to send the imprisoned Davis a crown of thorns — made by the Pope himself. As Gary Potter wonders,
Why did this pope who is a Venerable of the Church — the very one who promulgated the dogma of the Immaculate Conception, published to the world the famous Syllabus of Errors, and presided over the Vatican Council that solemnly defined the dogma of papal infallibility — seek to comfort Davis, who was not a Catholic?
Potter speculates that Pius IX may have taken an interest in Davis because of the many prominent Catholic families in the South, and because of the receptivity to Catholicism which characterized Southern culture. Perhaps more significantly, Pius IX himself had experienced the opposition of secessionist and nationalist movements as leader of the Papal States.
Pius IX, you see, was pope from 1846-78 (the longest pontificate in the history of the papacy), during which time Italy underwent the political transformation from disunited states to a centralized, national government. In 1848, because the Pope would not bring the Papal States to war with Catholic Austria, the Catholic Encyclopedia notes that
the pope was denounced as a traitor to his country, his prime minister Rossi was stabbed to death while ascending the steps of the Cancelleria, whither he had gone to open the parliament, and on the following day the pope himself was besieged in the Quirinal. Palma, a papal prelate, who was standing at a window, was shot, and the pope was forced to promise a democratic ministry. With the assistance of the Bavarian ambassador, Count Spaur, and the French ambassador, Duc d'Harcourt, Pius IX escaped from the Quirinal in disguise, 24 November, and flet to Gaeta where he was joined by many of the cardinals. Meanwhile Rome was ruled by traitors and adventurers who abolished the temporal power of the pope, 9 February, 1849, and under the name of a democratic republic terrorized the people and committed untold outrages.
The Catholic Encyclopedia also notes that
the doom of [Pius IX's] temporal power was sealed, when [in 1858] Cavour and Napoleon III met at Plombieres, concerting plans for a combined war against Austria and the subsequent territorial extension of the Sardinian Kingdom. They sent their agents into various cities of the Papal States to propogate the idea of a politically united Italy. The defeat of Austria at Magenta on 4 July, 1859, and the subsequent withdrawal of the Austrian troops from the papal legations, inaugurated the dissolution of the Papal States. The insurrection in some of the cities of the Romagna was put forth as a plea for annexing the provinces to the Piedmont in September, 1859. On 6 February, 1860, Victor Emmanuel demanded the annexation of Umbria and the Marches and, when Pius IX resisted this unjust demand, made ready to annex them by force.
Sound familiar? Perhaps Pope Pius IX sympathized with Jefferson Davis as a fellow victim of nationalist fervor.
(In 1853, by the way, Pius IX established my diocese — the Roman Catholic Diocese of Erie, Pennsylvania. During his pontificate, he also established nearly 20 other American dioceses, including Albany, Buffalo, Cleveland, Savannah, Brooklyn, Newark, Green Bay, Rochester, Scranton, San Antonio, and Providence).
Returning to Masugi's contentions, someone also forgot to tell the great Roman Catholic scholar, Lord Acton, about the South's "rejection of the eternal higher law." Acton famously wrote to Robert E. Lee:
"I saw in States Rights the only availing check upon the absolutism of the sovereign will, and secession filled me with hope, not as the destruction but as the redemption of Democracy.... I deemed that you were fighting the battles of our liberty, our progress, and our civilization; and I mourn for the stake which was lost at Richmond more deeply than I rejoice over that which was saved at Waterloo."
(As an aside, Acton did not agree with Pius IX on the issue of Papal infallibility. Acton, however, dutifully shut his mouth and did not defy the Pope after the dogma was promulgated. Yet Acton and Pius IX agreed on their support for the CSA).
Someone also forgot to tell Thomas "Stonewall" Jackson about the evil of his cause. As related by James I. Robertson, Jr., after the battle of First Manassas (Bull Run to the Yankees), Jackson sent a letter home:
A crowd eager for news of the battle thronged the town post office when the mail arrived. Dr. William S. White immediately recognized Jackson's scrawl on the letter handed him. The minister cried out, "Now we shall know all the facts!" A hush settled over the townspeople. White then read the letter. "My dear pastor, in my tent last night, after a fatiguing day's service, I remembered that I had failed to send you my contribution for our colored Sunday school. Enclosed you will find a check for that object, which please acknowledge at your earliest convenience, and oblige yours faithfully, T.J. Jackson." (Stonewall Jackson: The Man, The Soldier, The Legend, p 271)
Also, if Masugi is correct, how does one explain the presence of "Deo Vindice" (Latin for "God as our Defender" on the Great Seal of the Confederacy?
Additionally, Masugi assumes that "the equality of rights that underlies the Constitution" which exists in 2001 is the same "equality of rights" underlying the Constitution as seen in 1861. Not so. This is not to argue that the Constitution is a "living document;" such a view, as I have previously written, is indefensible. This is to argue, however, that Masugi's view of the Constitution is very much a product of the way things happened to turn out in the 140 years since the Civil War began; his view of the Constitution was not in play at the time of the war.
Further, Masugi is incorrect in characterizing those persons who "dominate our universities, foundation boards, and other unelected positions of power" as inheritors of the Confederate tradition. Rather, these Marxist and post-modernist types are precisely those types whom the Confederacy opposed. There is nothing post-modern about the League of the South, for example, while the Ford Foundation, Rockefeller Foundation, Public Welfare, and other such groups have long lobbied for the expansion of the central state.
The Ford Foundation (1952-53) and Rockefeller Foundation (1956-57), it must be noted, sponsored Harry Jaffa's research for Crisis of the House Divided; Jaffa thanks them for their funding in the book. One is forced to wonder what foundations Masugi has in mind, unless the Ford and Rockefeller Foundations have changed radically since the 1950s.
If these foundations have changed since that time, they're keeping it a secret. The Rockefeller Foundation, for example, bills its "Louder than Words" report as follows: "Racial justice work is a central component of the Rockefeller Foundation's efforts to broaden economic and social opportunity in the United States." The Ford Foundation report "Common Needs, Common Ground" also does not appear to be the work of people who deny any higher laws about equality.
Indeed, attributing the insight to his reading of Jaffa's new book (ably criticized by Joseph Sobran and Myles Kantor), Masugi goes so far as to explicitly label Bill Clinton as a "true heir of the Confederacy:"
It is plain from Jaffa's New Birth of Freedom that today's most prominent representative of the abiding message of the Confederacy is not some Civil War re-enactor and certainly not Attorney General John Ashcroft but rather the sort who dispute "what the meaning of is is."
Civil War re-enactors and the readers of Southern Partisan, which famously interviewed John Ashcroft, might be surprised to learn that Clinton is their true role model.
Ignored by Masugi is Ashcroft's praise for the Southern cause; the lecherous Clinton has no such respect for the South. Of course, if you are out to demonize the South, it is better to ignore Ashcroft than confront his actual views. It is also better to ignore the fact that, like Bill Clinton's top contributors, Lincoln was a trial lawyer, and that, like Clinton, Lincoln demonized opponents of his policies. As Clinton once blamed "right wing talk radio" for Timothy McVeigh's act of mass murder,
To doubt the president's wisdom — to question his decision for war — was treason. Lincoln's logic became holy writ on stone tablets for the faithful. There were only two classes of citizens — those who followed the president's line and traitors. (When in the Course of Human Events, p 211)
Thus, under Lincoln, the alleged defender of American liberty,
military authorities soon began imprisoning prominent secessionists without trial. The writ of habeas corpus was a constitutional safeguard to prevent such imprisonments without sufficient legal cause, and one of the incarcerated Marylanders, John Merryman, attempted an appeal on that basis. Chief Justice Roger B. Taney, sitting as a circuit judge, ordered Merryman released, but federal officials, acting under Lincoln's orders, refused. The aging Chief Justice, just three years from death's door, thereupon issued a blistering opinion holding that only Congress had the constitutional right to suspend habeas corpus. The President "certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law," declared Taney. If Lincoln's action was allowed to stand, then "the people of the United States are no longer living under a Government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found."
Lincoln simply ignored Taney's opinion. He also wrote out standing orders for the Chief Justice's arrest, although these were never served. (Jeffrey Rogers Hummel, Emancipating Slaves, Enslaving Free Men, p 142)
Shortly after Taney's opinion was issued, Lincoln arrested 31 Maryland legislators, the mayor of Baltimore (the nation's 3rd largest city at the time), a U.S. Congressman from Maryland, and anti-war publishers and editors. (Hummel 143).
It may be recalled that the Clinton administration exhibited a Lincolnian contempt for the law by instructing federal agencies to ignore rulings from the U.S. Courts of Appeals, as if only the United States Supreme Court were competent to declare the meaning of federal law.
It should be noted at this point that it is no defense for Lincoln that the CSA also violated civil liberties during the war. Mark Neely, who has documented Lincoln's abuse of civil liberties in The Fate of Liberty, treats this fact not only as a shocking revelation, but as a vindication of Lincoln's acts in his later book, Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism. If the CSA also violated civil liberties, the argument goes, then those who justify secession cannot hold similar violations against Lincoln, nor can they claim that the CSA stood for constitutional government.
This argument completely misses the point of bringing Lincoln's record to light: the South is already demonized, while Lincoln is lionized in part because his abuse of civil liberties is not widely known.
Tibor Machan, in "Rethinking the Civil War," describes how he changed his view of the civl war over time. As part of this account, Machan mentions his surprise at learning of Lincoln's disregard for civil liberties. The reason this surprised Machan, he states, is that this fact of Lincoln's reign did not fit with the established mythology he had been fed in the public schools.
More significantly, Hummel points out that the restrictions of civil liberties in the CSA contributed to the failure of the southern drive for independence. Contrary to Neely's provocative subtitle, it is precisely because Southerners were fighting to defend constitutional government that abuses of civil liberties by the CSA so demoralized the South.
The Southern military situation in 1865, Hummel contends, was far from being an unequivocal Union victory. In fact, it was closer to the situation facing George Washington's Continental Army at Valley Forge in 1778, when the British held the American capital of Philadelphia (p 282). Rather than persevere like George Washington, the "never surrender" South surrendered in part because the centralization of power in Richmond subverted the war aim of preserving constitutional order. Hummel adds another little discussed explanation for the surrender: the deeply religious South began to believe that their sufferings were the result of the sin of slavery. "By the war's second year, a significant movement within southern churches was agitating for such reforms as prohibiting the separation of slave children from their mothers, admitting slave testimony in courts, and permitting slave religious assemblies." (p 283)
Pace Ken Masugi and the Claremont Institute, Sheldon Vanauken — a noted Catholic scholar, and a friend and student of another noted denier of "higher laws," C.S. Lewis — points out the true cause of the war while laying the blame for the moral degeneracy of contemporary civilization at the feet of Honest Abe:
The states of the deep South dissolved their connection with the voluntary union of the United States with marked legality at the beginning of 1861. For a quarter of a year no one knew that there was to be a war. Then Lincoln (unauthorised by the Constitution) called for troops; and the upper South, led by Virginia, seceded. War was Lincoln's choice. The point is, Lincoln could have chosen to let the South go in peace on the grounds that just government depends on the consent of the governed, and the Southern states had withdrawn that consent. But, said the North, the majority do consent, since there are more people in the North. Even if most of the people in the South do not consent, we in the North are the majority of the whole nation...This is precisely what de Tocqueville warned against: the tyranny of the majority.
The America of today is the America that won that immense triumph in the war — the triumph of unlimited, equalitarian democracy. And its leaders have blurred the distinction between freedom and equality to the point where many people use those words as virtually interchangeable terms. ‘Freedom from want' implying every man's equal right to food may indeed be a right but it is not freedom; it is his freedom, though, to take action to improve his needy state. What most people are unaware of is that freedom and equality, though revolutionaries may shout of both, are uneasy bedfellows and, in fact, often opposed, each tending to limit the other. Nearly every law designed to bring about greater equality, as so many of the laws of the late-twentieth century do intend, limits freedom. The freedom of the bright student to learn swiftly is limited by equalitarian schools for the average.
The Southern nation, after a brief, intense, and heroic existence, was defeated, and then, as a conquered province, was subjected to the demeaning brutalities of ‘Reconstruction' and subsequently to economic discrimination. (The Glittering Illusion: English Sympathy for the Southern Confederacy, pp 142-43)
But there is no need to take Sheldon Vanauken's word for it: Lincoln's own Attorney General agrees:
The long war had contributed to a breakdown everywhere both in prevailing ehtical norms and in the distinction between public and private spheres. "The demoralising effect of this civil war," wrote Edward Bates, Lincoln's first Attorney General, "is plainly visible in every department of life. The abuse of official powers and the thirst for dishonest gain are now so common that they cease to shock." The same Congress that passed the Fourteenth Amendment also, without a second thought, voted itself a hefty pay raise, and the flagrancy of a subsequent salary grab in 1873 shamed Congress into repealing it. The Grant era became so notorious for its political bribery that it has gone down in history as the Great Barbecue. In the words of a Carpetbag governor of Louisiana: "I don't pretend to be honest. I only pretend to be as honest as anybody in politics....Why, damn it, everybody is demoralizing down here. Corruption is the fashion." (Hummel 314)
Lincoln, then, and not the Confederate States of America, has a greater guilt for the ensuing moral degeneracy of American culture, if guilt is to be apportioned between them (one must be careful not to venture into determinism).
Noted Civil War historian James McPherson also contends that Abe Lincoln is properly seen as having expanded the government: "This astonishing blitz of laws...did more to reshape the relation of the government to the economy than any comparable effort except perhaps the first hundred days of the New Deal." (Abraham Lincoln and the Second American Revolution, p. 40, cited in James Ostrowski, "Was the Union Army's Invasion of the Confederate States A Lawful Act?," Chapter 8 of Secession, State and Liberty, ed. David Gordon, p. 156).
Finally, Masugi simply cannot come up with high enough praise for Harry Jaffa's most recent book, A New Birth of Freedom:
Amidst the changes following a bitter, disputed election, Americans must wonder whether there is any truth besides cynical truth in politics....Fortunately, this Lincoln's birthday we have a means of assessing all the partisan claims in light of our greatest political figure. Harry V. Jaffa's long-awaited A New Birth of Freedom enables us to separate superficialities from the substance and rediscover who we are as Americans.
First, there is no truth besides cynical truth in politics. The emperor has no clothes. You are better off not deceiving yourself. Second, even if Jaffa's book is the greatest book written since the Bible, Masugi's claim is untenable. The notion of "who we are as Americans" is not likely to be contained in any single book, let alone an extended reflection on the Gettysburg Address.
Worse, Jaffa and Masugi's view of "who we are as Americans" appears to be defined by reference to the victorious Northern view of the war and what it means to be an American. Such a view is necessarily skewed.
In Conversations with Shelby Foote, the esteemed novelist and historian makes the point that the Confederates were just as much Americans as the Northerners, a point which appears too frequently lost on Yankees. As Foote relates in an interview with William C. Carter,
[Carter:] Some of the French critics say that you are persuaded of the long-term failure of the American adventure. Would you elaborate on that interpretation, if you agree with it?
[Foote:] I do agree with it, and I think it's an advantage that the Southern artist has, whether it's in music or sculpture or painting or writing. I'm often amazed to hear the frequent quote, "We Americans have never lost a war." You hear it all the time: "Never lost a war" — at least you heard it before Vietnam. I know some Americans who certainly lost a war — lost it about as thoroughly as a war can be lost, and afterwards got ground into the dirt harder than most any losers I know — and they lived in the South. That gave us, by inheritance, a true sense of tragedy. We do not believe that all noble experiments are bound to succeed. We know at least one noble experiment that failed miserably. We don't have the bright outlook that everything is for the best in this best of all possible worlds, because our history taught us differently.
And while the war was not always in the forefront of our consciousness, it operated very strongly in our unconscious and on our manners and our morals. For instance, Vicksburg fell on the fourth day of July. The Fourth of July throughout my childhood and young manhood was never celebrated in Mississippi. One year a couple was there from Ohio — why they were there I do not know — and they drove their car up on the levee, spread out their blanket, and had a picnic on the levee to celebrate the Fourth. They forgot to set the brakes of the car properly and it rolled down the levee and into the river; everybody said it served them right for celebrating the Fourth.
But this true sense of tragedy on a large scale is a very Southern heritage, whereas for a Northerner it's a true sense of triumph. Northerners believe that all the virtues conquered because they are now the virtues, but Southerners don't believe that virtue necessarily conquers because we believe strongly in the virtues of our forbears. We don't believe that government of and by and for the people would have perished from the earth if the South had won the war, although we are required to memorize those very words in school. It's very strange what power there is in literary skill. We memorize Lincoln's Gettysburg Address because he phrased it so well; we don't even hear what it's saying. (261-62)
Realistically, what would the North have the South do? Forget the grandfathers, fathers, husbands, brothers, and sons who died, or the mothers, daughters, wives, and sisters who were raped by the invading forces of the United States?
Is that realistic, or is it just downright offensive? For the record, Adams contends that "The slaughter of Confederate men only matched, on a proportional basis, the losses incurred by the Russians and the Germans in World War II." (When in the Course of Human Events, p 195). Hummel notes that the losses of the CSA are close to those suffered by the French in World War I, but slightly less than suffered by the Germans in World War II (p 282). For the sake of perspective, it should be noted that half of the male babies born in France in 1900 died in World War I.
Ultimately, Foote may be correct about the failure of the American adventure. Forrest McDonald notes in States' Rights and the Union that
Patriots of all stripes accepted the primacy of the states as a fact of political life, but they were far from unanimously happy about it...Nationally oriented groups in the middle states and lower South tended to be aristocrats (Hudson Valley patroons in New York, rice plantation families in the lower South) or wealthy merchants in Philadelphia who regarded states' rights republicans as radical democrats posing a genuine threat to social and political stability...The two groups had hardened into factions in Congress before the end of 1776, and their enmity and mutual distrust continued after the war. (pp 11-12)
In fact, the "enmity and mutual distrust" continued into the Alien and Sedition Acts, then into the War of 1812, and ultimately into the War for Southern Independence; it continues to this day in the struggle between those who want "more freedom, less government" and those who thirst for unlimited government.
More importantly, it must be made explicit that within five months of the Declaration of Independence, those Americans, or, rather, those British subjects living in Britain's American colonies, who had joined together to gain independence from Britain (i.e., to secede), were drifting toward disunion because they did not share substantive notions of political philosophy. Although the colonists were able to unite in their desire to be free of English oppression, they were not able to unite in their desires for shaping the new American nation.
As other writers have argued, the philosophical divide between the North and South may be traced to the divide between Massachusetts Puritans and Virginia planters, and back to the divisions in England between Cavaliers and Roundheads (Cromwell's Puritans).
The history of American differences in political philosophy aside, the Northern view of the war glosses over or mishandles important questions about secession and the Northern conduct of the war.
First, the disenfranchisement of Southerners who had supported the Confederacy, and the attendant "loyalty oaths" which were imposed upon them, come very close to an inquisition. As the Northern abolitionist Lysander Spooner wrote of the oaths,
On general principles of law and reason, all the oaths which, since the war, have been given by Southern men, that they will obey the laws of Congress, support the Union, and the like, are of no validity. Such oaths are invalid, not only because they were extorted by military power, and threats of confiscation...they are in contravention of men's natural right to do as they please about supporting the government
Loyalty oaths have become anathema in the United States, in part because they were used against Communists. And yet it is apparently laudable that the North imposed such oaths.
Second, despite Abraham Lincoln's flaming lie that "the Union is older than the states" — which makes as much sense as the claim that "my marriage is older than my wife and I" — Article One of the Paris Peace Treaty of 1783, which ended the American War of Independence, states that
His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.
In international law, a "state" is an entity that has 1) a defined territory and 2) a permanent population, 3) under control of its own government, 4) that engages in, or has capacity to engage in, formal relations with such other entities. The American colonies, then, were "states," just like France is a "state."
Statehood is also founded on the recognition of a state by other sovereign states. Pope Pius IX, head of the Papal States, consistently addressed Jefferson Davis as the President of the CSA.
These standards of international law have been adopted by the United States. They are not standards which the United States refuses to recognize. Thus, the American states, for purposes of international law, even if they did not meet the four criteria already, came to be sovereign nations when they were recognized by England. And, as a matter of international law, the CSA was a "state" as well. It had 1) territory, 2) population, 3) control by its government, and 4) it engaged in formal relations with other states, e.g. the Papal States.
The federal courts took contradictory approaches to secession. James Ostrowski points out that:
In Coleman v. Tennessee, the Supreme Court held military occupation lawful, not on constitutional grounds, but by resorting to international law principles...Thus, to justify the otherwise unconstitutional military occupation of a state, the Supreme Court treats that state as if it were an independent nation, implicitly recognizing the validity of its secession. (174).
A convention professing to represent the State of Virginia, which assembled in Richmond in February, 1861, attempted by a so-called ‘ordinance of secession' to separate that State from the Union, and combined with certain other Southern States to accomplish that separation by arms. The people of the northwestern part of the State, who were separated from the eastern part by a succession of mountain ranges and had never received the heresy of secession, refused to acquiesce in what had been thus done, and organized themselves to defend and maintain the Federal Union. The idea of a separate State government soon developed itself; and an organic convention of the State of Virginia, which in June, 1861, organized the State on loyal principles-‘the Pierpont government'- and which new organization was acknowledged by the President and Congress of the United States as the true State government of Virginia-passed August 20th, 1861, an ordinance by which they ordained that a new State be formed and erected out of the territory included within certain boundaries...
On this view, the state of Virginia didn't really secede, and the state legislature wasn't really the state legislature — it was just a convention "professing to represent" Virginia. Those guys! And it was the South which started the war. And so, the loyal state of Virginia (which had never left the Union), decided to make West Virginia out of itself. On this view, secession, it must be noted, was not merely an incorrect legal theory but a "heresy."
Northern political philosophy dances back and forth in an incoherent daze. Had the Southern states actually left the union, such that they had to be readmitted, or had the Southern states only attempted to leave the union? As Hummel observes,
because most Northerners agreed that the seceding states had not legally left the Union, these states counted toward the total for ratifying the [13th] Amendment. Only their ratifications, coupled with those from the North, provided the necessary three-fourths...The reconstructed governments were...in the anomalous position of being recognized by the President but not by Congress, of being legitimate for the purpose of ratifying the Thirteenth Amendment but not for the purpose of having representation within the national government. (Hummel, 297, 299)
Both claims, however, cannot be true. Either the Southern states left, and were re-admitted to the Union they had left, or the Southern states did not leave, in which case they did not need to be re-admitted.
The consequences of the Northern inability to take a consistent view of the Southern secession are overwhelming. Justice George Comstock, a member of the New York Court of Appeals (the highest court in the state, despite the name) and a founder of Syracuse University, observed that
If Mr. Davis is right as to all the circumstances and results flowing from separation, then the seceded states are the rightful possession of a perfect sovereignty...[the Civil War then] was a war of invasion and conquest, for which there is no warrant in the Constitution, but which is condemned by the rules of Christianity, and the law of the civilized world. (When in the Course of Human Events, 182).
And yet the federal courts do not consistently decide whether the Southern states did or did not leave the union, nor do they adopt a consistent theory to explain either side of the question.
Third, although at least four Southern states make legal arguments in their Declarations of Secession (which were issued after the states had seceded, by way of explanation and legal justification) which mention slavery, they do not do so to incite popular support for secession. For one, secession was already desired by the populace. Second, if the intention were to engender popular support for secession by reference to slavery, this was a manifest failure; as Tom DiLorenzo notes in "Libertarians and the Confederate Battle Flag," the evidence of thousands upon thousands of letters written by Confederate soldiers fails to disclose mention of slavery as a reason for fighting. Instead, the soldiers professed to be fighting for liberty and independence.
Instead, the declarations mention slavery as proof of the fact that the federal government, as well as the northern states, already had destroyed the constitution, therefore relieving the southern states of any obligation to remain in the union; indeed, the declarations go so far as to declare it a duty to secede to escape such abuses. The South Carolina declaration, for example, argues that
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 on 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 declarations of secession issued by South Carolina, Mississippi, Georgia and Texas are explicitly legalistic, and read like complaints for breach of contract. The documents mention slavery in reference to the federal government's selective enforcement of the laws, as well as its unconstitutional support for Northern manufacturing interest by means of tariffs upon imports (which were paid by Southern planters).
These four states, then, can be said to have seceded over the failure of federal authorities to protect slavery and the federal tariffs, both of which were seen as failures to uphold the Constitution.
(By the way, as Thomas DiLorenzo notes in "Yankee Confederates: New England Secession Movements Prior to the War Between the States" (Chapter 7 of Secession, State and Liberty), these are exactly the same sort of arguments made by Northern Federalists such as John Quincy Adams (the 6th president) in 1803 over the Louisiana Purchase, in 1809 over the embargo, and at the Hartford Convention in 1814 over the War of 1812).
It must be noted, however, that the entire South did not secede at the same time. Virginia, Arkansas, Tennessee and North Carolina seceded only after Lincoln's unconstitutional call for troops to invade the states who had already seceded. Thus, Jeffrey Rogers Hummel (p 8) argues that slavery and secession must be viewed as separate issues; even if some states seceded over slavery, this does not automatically justify a war to prevent such secession.
Fourth, the Union Army's treatment of the South was criminal. Sherman's march to the sea was the very definition of barbarism. As Charles Adams notes (Chapter 8), at the same time as the war was going on, the first Geneva Convention (1863) formalized the laws of war which nations had recognized for nearly 300 years. Included among war crimes under international law were: 1) attacking defenseless cities and towns, 2) plundering and destroying civilian property, and 3) confiscating non-necessities from civilians, or not paying for necessities which were taken. Sherman's march to the sea violated all three norms of international law.
The disregard for international law in the destruction of the South is instructive. Stalin famously wondered how many divisions the Pope had at his disposal. In this case, Lincoln had more troops than Jeff Davis. As is often remarked, the only thing proved by the war was that an industrial nation with a population of 20 million could militarily defeat an agricultural nation with a population of 9 million.
This brings to mind the trial and execution of Charles I. At his trial, Charles demanded to know "by whose authority" he was being tried, since it is "the authority of the King in Parliament" which was held to empower Parliament to act. Of course, the Parliament never answered his question, because the only answer was that Parliament had no authority over the king. And so Charles I was executed. (For two great accounts of the reign and death of Charles I, see Charles I: The Personal Monarch, 2nd Ed., by Charles Carlton, and Charles I, part of the British History in Perspective series, by Michael B. Young). It is a hard truth to accept, but sometimes human beings act as if might makes right, and the law be damned.
No wonder Robert E. Lee, in 1870, told the former Confederate governor of Texas, Fletcher Stockdale: "Governor, if I had foreseen the use those people [Yankees] designed to make of their victory, there would have been no surrender at Appomattox Courthouse; no sir, not by me. Had I foreseen these results of subjugation, I would have preferred to die at Appomattox with my brave men, my sword in my right hand." (When in the Course of Human Events, 219-20).
The cases of the CSA and Charles I are not isolated events. Bonnie Prince Charlie, for example, is acknowledged to have had the legal right to the English throne — and yet he died trying to enforce his right. The USA systematically broke numerous treaties with the Indian tribes, who remain, to this day, the poster-nation for federal welfare "largesse," with third-world poverty and health statistics. The Baltic republics of Latvia, Estonia and Lithuania — allegedly "liberated" by the Soviets — remained under Soviet rule for roughly 40 years. Poland has spent the majority of her history as the conquered province of various empires. The "enlightened" European nations which opposed American slavery spent the next 100 years carving out territorial empires in Africa.
All too often in human affairs, might makes right.
One key to the preservation of Western civilization is to acknowledge that such a state of affairs is unjust and immoral.
In that regard, the proper view of Abraham Lincoln is essential to the restoration of American liberty.
The historical difficulty in adjudicating cases of secession, and therefore in arguing over the fate of the South, is that there is no judge in a case of secession. Since international law holds statehood and recognition to be political questions, might tends to make right in the international arena. Where the colonial secession from England is concerned, there was no dispute because the two parties — the colonies and England — agreed among themselves to end their hostilities and go their separate ways.
When the American states later changed their system of government from the Articles of Confederation to the Constitution of 1789, Britain and France did not complain because this was an internal arrangement of the colonies, similar in international significance to the question of whether to call one house of the legislature the Upper House or the Senate, or whether to paint the Senate chambers blue or red.
But secession tends to be a political question because if a state secedes, a new state comes into being that did not exist before, with territory and people that used to "belong" to another state. All the legal arguments merely attempt, as Ostrowski notes Abe Lincoln did in Congress, to persuade the politicians how to act in practice. Ultimately, might made right for Abraham Lincoln, flowery rhetoric notwithstanding.
In conclusion, consider Lincoln's actions by the standard found in Montesquieu: have Lincoln's actions served to preserve the free condition of the United States? In a word, no.
Overwhelmingly, the evidence demonstrates that Lincoln did not preserve the freedom of the United States, but expanded governmental power at the expense of individual liberty.
Lincoln's only claim to have acted for liberty is that he freed the slaves. Ignoring for the sake of argument the great problems with this claim, what sort of freedom is today enjoyed by the descendants of the freed slaves? The freedom to do what the government (whether federal, state, or local) allows them to do, and no more. This is of course not to endorse or defend the abomination which is slavery. Slavery is the ultimate denial of human liberty. Rather, this is to point out that Lincoln's war, and his handling of the end of slavery in America, was a long-term disaster for American liberty:
the Civil War [is] America's real turning point. In the years ahead, coercive authority would wax and wane with year-to-year circumstances, but the long-term trend would be unmistakable. Henceforth there would be no more major victories of Liberty over Power. In contrast to the whittling away of government that had preceded Fort Sumter, the United States had commenced its halting but inexorable march toward the welfare-warfare state of today. (Hummel 359)
Marshall DeRosa, in The Confederate Constitution of 1861: An Inquiry into American Constitutionalism, provides quotations from Richard Henry Lee and T.S. Eliot which parallel Montesquieu's concern:
Richard Henry Lee, 1787: The present moment discovers a new face in our affairs. Our object has been all along to reform our federal system and to strengthen our governments, to establish peace, order and justice in the community; but a new object now presents. The plan of government now proposed is evidently calculated totally to change, in time, our condition as a people. Instead of being thirteen republics under a federal head, it is clearly designed to make us one consolidated government...This consolidation of the states has been the object of several men in this country for some time past. Whether such a change can ever be effected in any manner, whehter it can be effected without convulsions and civil wars, whether such a change will not totally destroy the liberties of this country, time can only determine.
T.S. Eliot, 1949: The real revolution in that country was not what is called the Revolution, but is a consequence of the Civil War; after which arose a plutocratic elite; after which the expansion and material development of the country was accelerated; after which was swollen that stream of mixed immigration, bringing (or rather multiplying) the danger of development into a caste system which has not yet been quite dispelled. For the sociologist, the evidence from America is not yet ripe.
Lee wrote at the time of the ratification of the Constitution; T.S. Eliot wrote in the aftermath of World War II. Fifty-two years since Eliot wrote, the evidence of American public life demonstrates that government power has continued to expand, while the realm of American liberty has grown ever smaller. This is not a good thing. As Jose Ortega y Gasset observed in 1930, "The result of this tendency will be fatal. Spontaneous social action will be broken up over and over again by State intervention; no new seed will be able to fructify. Society will have to live for the State, man for the governmental machine." (The Revolt of the Masses).
Lincoln declared that he fought the war to preserve the Union, and indeed, he did so. The Union, however, was preserved in name only, while the formerly free condition of America was subjugated to the power of government. This is the reason for Hummel's title — Emancipating Slaves, Enslaving Free Men — which, ironically, comes from a cautionary speech given by Lincoln. In his address before the Young Men's Lyceum of Springfield, Illinois on January 27, 1838, "The young Lincoln was warning about the potential danger of a future Napoleon subverting the United States Constitution." As Lincoln stated, "Towering genius disdains a beaten path...It thirsts and burns for distinction; and, if possible, it will have it, whether at the expense of emancipating slaves, or enslaving freemen." (Hummel 366)
Returning to Montesquieu, consider his account of the nature of political unions:
What is called union in a body politic is a very equivocal thing. The true kind is a union of harmony, whereby all the parts, however opposed they may appear, cooperate for the general good of society — as dissonances in music cooperate in producing overall concord. In a state where we seem to see nothing but commotion there can be union — that is, a harmony resulting in happiness, which alone is true peace. It is as with the parts of the universe, eternally linked together by the action of some and the reaction of others. (93)
Following Montesquieu's account, the "true kind of union" must be seen to have died with secession, if not earlier. What sort of union, then, did Lincoln preserve by force of arms? As Montesquieu continues,
in the concord of Asiatic despotism — that is, of all government which is not moderate — there is always real dissension. The worker, the soldier, the lawyer, the magistrate, the noble are joined only inasmuch as some oppress the others without resistance. And, if we see any union there, it is not citizens who are united but dead bodies buried one next to the other." (94)
Recall that the quotation is taken from Montesquieu's Considerations on the fall of the Romans. In the works of the Roman historians, references to "Asiatic despots" are not uncommon. The reason for this is that, after the fall of the Republic, even the emperors were allegedly answerable to the people through the Senate, unlike the absolutist "Asian" monarchs whom the Romans encountered. In Rome, citizens possessed liberties which even the emperors were not supposed to violate.
Once upon a time, this was also true in America.
May 10, 2001
Mr. Dieteman [send him mail] is an attorney in Erie, Pennsylvania, and a PhD candidate in philosophy at The Catholic University of America.
© 2001 David Dieteman