A Libertarian Theory of Secession and Slavery

Professor Tibor Machan, in his "Lincoln, Secession and Slavery" (6/1/02) has taken the position that while secession in and of itself is unobjectionable to the libertarian, it cannot properly be applied to political jurisdictions which practice slavery. For, if secession rights were allowed to slave owning countries, it would in effect be to justify kidnappers absconding with their victims. He applies this perspective to the United States, circa 1861, and concludes that Abraham Lincoln, for whatever his faults, and Machan concedes they were many and serious, is still "a good American." Why? This is because he was justified in stopping the Confederate (slave) States from seceding, even though, Machan again stipulates, stopping slavery was no part of Lincoln’s motivation.

While it cannot be denied that this is an interesting viewpoint, even a refreshing one, in that it has not hitherto been broadly discussed, it cannot be reconciled with libertarian principles.

One argument which might be launched at Machan is that if the south was unjustified in seceding from the north in 1861, given that the south was a slave-holding community at this time, then the same holds for the 13 colonies breaking away from England in 1776, since the latter also engaged in forced labor of human beings. If the Confederate states must be precluded from seceding from the north on the ground that they would be making off with kidnap victims, then the same can be said of the United States of American leaving the British yoke. As it is the rare libertarian who would oppose the American Revolutionary War, this alone might give Machan pause for thought. However, let us take this argument to its logical conclusion, and posit that if the North was morally justified in keeping the South in the fold, even against the will of the latter, then the same applies to the U.K. vs. the U.S. Namely, the both breakaways were improper, however much this offends common sense.

A second problem with the Machan thesis is that if the South was unjustified in departing from the North, then, too, it would have been improper for the North to leave the South, and for the same reason. That is, if the Confederate states had slaves in 1861, why then so did the Union, during this epoch. Actually, long before the "Civil War" there was a movement afoot amongst the New England states, fueled by the Abolitionists, to secede from the South, since the latter favored the slave system and they opposed it. This, too, would have had to have been squelched, if Machan’s objections to Confederate secession are correct, for even though the proponents of this idea opposed slavery, still, this institution was legal at the time, and there were some actual slaves in this territory.

(A word on nomenclature. What occurred in the U.S. between 1861-1865 was not a Civil War. This phrase is properly reserved for the case wherein each side is contending for rule over that which is claimed by both. In sharp contradistinction, the South in the War of Northern Aggression — or, more radically, the First War of Southern Secession — was attempting to achieve a divorce from the North, not a conquest of it.)

A third difficulty is that the North, also a slave holding territory, comes to its attempt to stop slavery in the South with "unclean hands." That is, it is not for the slave holding North to ride any moral high horse, in that, as even Machan concedes, it was no part of the intention of Lincoln to end slavery; merely, to preserve the union. But coercing one section of the country which no longer wishes to yoked to the other to remain against its will is to violate the law of free association; it is to violate the rights of those in the south who wish to go their own way. This, however, is not a fatal objection; at worst, it shows the North to be hypocrites. The more basic question is, as Machan correctly notes in effect, not whether or not the North acted in a logically consistent manner, but rather whether they acted rightfully.

It might well be that the Nazis were the worst society to have ever besmirched the globe (there are, unfortunately, several strong competitors for this "honor.") Does that imply they could do nothing right? Not at all. Presumably, the Nazi police captured and punished, for example, rapists. Now it might well be the case, indeed, it is the case, that the Nazis did far worse things than any one rapist. Nevertheless, in that specific case where the Nazis penalized our hypothetical violator of a woman’s right to bodily integrity, they acted in an entirely proper manner. So, too, then, could the North act properly in stopping slavery in the South, if indeed they were justified in doing this, despite the fact that they, too, were guilty of this very self same crime.

Take another case. Suppose serial murderer, A, witnesses serial murderer, B, in the process of killing an innocent person, C, and A kills B before B can carry out his nefarious deed. (Perhaps A’s motive is that wants to be the only serial killer in town). Was A justified in this one act? Yes, indeed, he was, since he saved the life of C, and the person he killed, B, was himself guilty of (previous) murders.

But this brings us to a more basic question: would a hypothetical North, completely innocent of any slave holding itself, be justified on libertarian grounds, in opposing by force the attempted secession of the South, on the grounds that the latter is a slave owning society? (We are now also asking the question, assume, arguendo, that the U.K. did not own slaves in 1776; would they have been warranted in taking on the role they actually did in the Revolutionary War?) Machan argues in the affirmative, I in the negative.

At first blush, my opponent in this debate has a strong case. Suppose the following: a thief breaks into a grocery store, robs it, and then, when he is surrounded by the police, grabs a hostage. Whereupon he makes the following statement: "I hereby secede from your society; since you are all libertarians, you must allow this. Therefore, I am walking out of this store, with my hostage in tow, and none of you have the right to stop me, or to save my victim, based upon your own principles." If this indeed is the position of the South, then the North was completely justified in not only fighting its attempted secession, but in actually winning the war. For, surely, the police need do no such thing as obey the robber-kidnapper in his curious demand.

But a moment’s reflection will show a disanalogy between our hypothetical robber, and the South. For the libertarian police could reply, "Sure, we’ll allow you to secede; you are now a sovereign country. However, we hereby declare war on you, first, to fulfill our contractual obligation with your hostage, to free him from your unjustified kidnapping, and, second, to punish you for your past robbery as well as this bout of unjustified imprisonment of this victim." The point is, a refusal to allow secession is a violation of the law of free association. Machan is so concerned with ante bellum slavery, he allows this to blind him to the fact that this "curious institution" is merely an aspect of the denigration of the law of free association. Yes, the southerners (and the northerners, too) unjustifiably enslaved black people. But the northerners compounded this rights violation by also refusing to allow the southerners the "divorce" they requested, and in so doing perpetrated another form of slavery upon them, namely the slavery implicit in violating secession rights. To repeat: slavery is but the most egregious form of denigration of the rights of free association. But there are other, lesser versions, such as refusal to recognize the natural right of secession.

The analogy between the South and the kidnapper-robber would hold true if and only if every single white resident of this territory was guilty of slave holding, and every single non-white resident was a slave. Then and only then would the North be justified, not in refusing the South secession, but in invading them, to get them to free their slaves. But the North would still not be warranted to "save the Union," against the express wishes of the Southerners (after they were duly punished).

Another difficulty with the Machan position is that slavery is not the only crime. If the North is entitled to violate the secession rights of the South because the latter committed the crime of slavery, then, too, they are justified in taking this coercive position against them for many other things as well. For example, suppose a Southerner stole (or was accused of stealing) a Northerner’s cow. Then, based on this perspective, the North would again be warranted to stop by force the departure of the South. Such a theory might well be entitled, "Secession in theory, captivity in practice."

We are all sovereign individuals. When anyone else, be he a king, a thug or a majority, demands anything of us (other than that we respect the libertarian axioms of property and non aggression), they are imposing upon us; they are invading us, and violating our rights. Secession is a necessary concomitant of liberty.

Machan, in explicitly endorsing secession (as long as there is no slavery), has come a long way out of the wilderness of minarchism he previously occupied, in the direction of anarcho-capitalism. But he must go further. He must recognize that there is no stopping point. If he truly recognizes the law of free association, he is logically compelled to accept, also, laissez faire and secession, as they are its necessary implications.

Based on the Machan insight, whether or not coupled with the heroic assumption that the North was not itself a slave owning society, this section of the country would have been justified in saying to the South no more than "Free your slaves, and we shall allow you to depart in peace." Did Lincoln say any such thing? He did not. Indeed, he specifically disassociated himself from any such idea. He rather took the very opposite stance. To wit, that the South could go on enslaving blacks until kingdom come for all he cared; his only concern was that the Union not be rent asunder. From all this Machan somehow derives the notion that our 16th President was a "good American," indeed, almost a libertarian, forsooth, in that the South should not be allowed to depart while still they held hostages, and that Lincoln stopped them.