“Liberty and Union, Now and Forever”*

by Timothy Sandefur

Liberty, July 2002

 

It seems that libertarians will never stop fighting the Civil War. In “The Economic Roots of The Civil War,”[1] Donald Miller has repeated some of the favorite arguments of today’s southern partisans, making the case that the South had the right to secede, and that the North’s triumph was an instance of might conquering right. I know these arguments well; I once believed in them myself. They bear some resemblance to libertarianism, and it is safe to say that a majority of libertarians probably agree with Walter Williams, Jeffrey Rogers Hummel, Murray Rothbard and others who have made the southern cause their own.            Unfortunately, that resemblance cannot stand up to searching examination, at least, not while maintaining a consistent belief in liberty. To understand why, it’s necessary to review a little history and a little constitutionalism.

            As with all wars, there were probably as many causes of the Civil War as there were men who fought in it, but a number of the bigger causes can be named. One of them was the so-called “tariff of abominations”; another, more important cause was the Nullification Crisis, sparked by Southern reaction to that tariff. But the single most important cause was the question of the Western Territories. As new states were being carved out of the west, the dominant question in national politics was whether these new states should be free states or slave states. The Senate was comprised of exactly as many senators from slave states as from free states, which effectively blocked any attempt to interfere with slavery by law. But this balance was a delicate one, and the South knew it. If the territories were admitted as free states, that balance would eventually topple, and Congress could then interfere with the “peculiar institution.”

            This was the reason behind the various compromises over matters such as the admission of Missouri in 1820 or California in 1850. These deals were carefully designed, not to abolish slavery or to perpetuate it, but to put off having to deal with it at all. The desire to avoid the uncomfortable topic reached such a fever that the House of Representatives even wrote a standing rule of procedure prohibiting Congressmen from introducing into Congress any petition by citizens asking for the abolition of slavery or the slave trade.[2]

But in all of this, the prime question was, can Congress prohibit slavery in the territories? The Southerners insisted it could not; Northern compromisers like Stephen Douglas argued that the residents of those territories should decide for themselves. The Constitution, on the other hand, was clear: the Congress could prohibit slavery in the territories. It explicitly grants Congress power to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”[3] Nevertheless, in Dred Scott v. Sanford,[4] the Supreme Court decided that no, Congress could not prohibit slavery in the Western territories, or indeed anywhere. Opponents of slavery saw immediately what that meant: a “one-way ratchet” permitting the spread, but not the restriction of slavery. It, and its component institutions—suppression of freedom of speech and personal association, for instance—would spread west, and gradually the Slave Power would dominate the nation. This is what Lincoln meant when he warned that America would inevitably become all one thing, or all the other.

            This question of slavery in the West sparked the famous Lincoln-Douglas debates. Douglas argued that the people in the West should decide for themselves whether to permit slavery or not: he called this “popular sovereignty.” But Lincoln insisted that the people in the territories had no right to make such a decision, and his reasoning was the same as that of John Locke, two centuries before: all men are created equal.

            Equality occupies the fundamental place in Locke’s libertarian theory. In his Second Treatise of Civil Government, Locke argued that each individual was created by God, and entrusted by God with the guidance of his own life. Each person therefore owned himself (in life estate), and did not belong to any other individual. This was not original with Locke. A few decades before the Second Treatise, John Milton had put it this way:

 

[God] gave us only over beast, fish, fowl

Dominion absolute; that right we hold

By his donation; but man over men

He made not Lord; such title to himself

Reserving, human left from human free.[5]

 

Since each individual owns himself, and is not the natural ruler of any other, then each individual equally has the right to government by consent. After all, if the individual were the natural property of another, he would haev no right to have a say in how he is governed. It is only if all men are created free and equal that they have the right to have any voice in—let alone, a right to create—a government.

            Man’s right to create government is therefore a form of the right to self-defense. Because each individual has the right to defend himself in the state of nature, Locke argued, the individual who enters into society can cede that right to the state, and create a society in which the government’s responsibility is to protect those equal, individual rights. But the state cannot therefore have any rights superior to those of the individuals who created it, because

 

The Reason why Men enter into Society, is the preservation of their Property [by which Locke means life, liberty, estate, opinions, and so forth]; and the end why they chuse and authorize a Legislat[ure] is, that there may be Laws made, and Rules set as Guards and Fences to the Properties of all the Members of the Society, to limit the Power, and moderate the Dominion of every Part and Member of the Society. For since it can never be supposed to be the Will of the Society that the Legislat[ure] should have a Power to destroy that, which every one designs to secure, by entering into Society, and for which the People submitted themselves to the Legislators of their own making, whenever the Legislators endeavour to take away, and destroy the Property of the People, or to reduce them to Slavery under Arbitrary Power, they put themselves into a state of War with the People, who are thereupon absolved from any farther Obedience, and are left to the common Refuge, which God hath provided for all Men, against Force and Violence.[6]

 

In other words, government is created as a form of collective self-defense. But if government turns and begins to violate the rights of the governed, the people have the right to defend themselves against the government—i.e., to rebel. Thomas Jefferson shortened this down to a beautiful précis:

 

We hold these Truths to be self-evident, that all Men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new government….[7]

 

Notice the logical order: because all men are created equal—with no individual the natural ruler of another—and because they are created with inalienable rights, they consequently have the right to create a government to protect those rights. And that government will be legitimate only insofar as it is based on that equal consent. If government violates those rights, the people have the right to defend themselves, through an act of revolution.

            Thus the Declaration explicitly limits the right of revolution. Only when a government “becomes destructive of these Ends,” can it be “the Right of the People to alter or to abolish it.”

 

Prudence indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer while Evils are sufferable than to right themselves by abolishing the Forms to which they have become accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government….[8]

 

According to the Declaration of Independence, 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. After all, what is the difference between a group of men in Philadelphia in 1776 declaring themselves no longer subject to the laws of the English monarch, and a group of men in Chicago in 1920 declaring themselves no longer subject to the laws of the United States? Only this: that the laws which the Founders rebelled against violated the rights of the people, who could defend themselves through revolution; while the laws against murder and robbery from which Al Capone might declare himself immune, were laws which protected those rights. An act of revolution is justified only as a defense of individual rights, while a criminal conspiracy is an organized form of theft: to steal, to enslave, to murder—to violate the rights of other individuals. The reason robbery is wrong is precisely because all men are created equal, and have inalienable rights—and that is the same reason that tyranny by the government is wrong. In both situations, the people have the right to self-defense; in the former case, self-defense is manifested in the police department arresting the robber; in the latter, it is manifested in a revolution against the tyrant.

            Thus we might sum up the error of the defenders of the South with a single statement from Jeffrey Rogers Hummel: “[A]s a revolutionary right,” he says, “the legitimacy of secession is universal and unconditional. That at least is how the Declaration of Independence reads.”[9] The Declaration actually says exactly the opposite: only a defense of individual rights will justify an act of revolution.
            This is why—contrary to today’s defenders of the South—the leaders of the Southern cause in the 1860s did not base their arguments on the Declaration of Independence, and in fact explicitly denounced it. “There is not a word of truth in it,” said John C. Calhoun.[10] The principle that all men are created equal, he said was “inserted into our Declaration of Independence without any necessity. It made no necessary part of our justification for separating from the parent country, and declaring ourselves independent.” Others went farther. Senator Pettit of Indiana declared it a “self-evident lie.”[11] Governor Hammond of South Carolina—who had once said “Slavery is…the greatest of all the great blessings which a kind Providence has ever bestowed upon our glorious region”[12]—denounced the “much-lauded by nowhere accredited dogma of Mr. Jefferson that all men are created equal.”[13] Contrary, then, to the oft-repeated claim that the Civil War was not about slavery, the question of slavery answers the essential question which determines whether secession in 1860 was an act of revolution on one hand, or a criminal conspiracy, in the other. The Confederates themselves saw this clearly. That is why Alexander Stephens, Vice President of the Confederacy, said that “Our new government is founded...upon the great truth that the Negro is not the equal to the white man. That slavery...the subordination to the superior race, is his natural and normal condition.”[14]

            The view that government was justified only insofar as it protected individual rights was anathema to the South and to its defenders. The distinction came down to the fundamental distinction which to this day differentiates libertarianism from all other political theories. These other theories believe in a fundamental right to govern other individuals, regardless of their consent. Philosophers of this sort, for instance Robert Bork, believe that they have a fundamental right to tell others how to live their lives, and when one suggests that they do not, they are furious and indignant; they feel that their rights have been violated. On the other hand, Locke and his modern descendants, libertarians, hold that the individual has the right to live free, without outside interference from kings or from majorities, so long as he does not interfere with the equal right of others to do the same. As Lincoln summed it up,

 

We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatible things, called by the same name—liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names—liberty and tyranny. The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty.[15]

 

In the Lincoln-Douglas debates of 1858, Douglas took the wolf’s position, and Lincoln took the sheep’s.

            Douglas was arguing for what he called “popular sovereignty,” which held that the people of the western territories had the right to decide for themselves whether they wanted to create state constitutions with slavery, or without it. Lincoln denied that the people had such a right, particularly because it ignored the views of one large portion of “the people”—i.e., the prospective slaves. He based his position explicitly on the Declaration of Independence. Douglas insisted that the Declaration’s phrase, “all men are created equal” referred only to whites: “[Lincoln] believes that the Almighty made the Negro equal to the white man,” Douglas said. “He thinks that the Negro is his brother. I do not think that the Negro is any kin of mine at all.”

 

And here is the difference between us. I believe that the Declaration of Independence, in the words “all men are created equal” was intended to allude only to the people of the United States, to men of European birth or descent, being white men, that they were created equal, and hence that Great Britain had no right to deprive them of their political and religious privileges; but the signers of that paper did not intend to include the Indian or the Negro in that declaration, for if they had, would they not have been bound to abolish slavery in every state and colony from that day?[16]

 

Douglas made no apologies. “The Constitution of the U.S.,” he said, “was framed by the white people, it ought to be administered by them, leaving each state to make such regulations concerning the Negro as it chooses, allowing him political rights or not as it chooses, and allowing him civil rights or not as it may determine for itself.”[17] Note the contrast between Douglas’ view and Locke’s: to Douglas, society is the source of rights; to him, “the people” have an inherent right to govern, and may determine how far they will allow individuals to have rights, so long as it is convenient to society to do so.

            Lincoln disagreed. He believed that in a territory where slavery did not yet exist, the people had no justifiable right to create a slave society. “Douglas,” said Lincoln, “with bitter irony and sarcasm, paraphrases our argument by saying: ‘The white people of Nebraska are good enough to govern themselves, but they are not good enough to govern a few miserable Negroes!!’ Well, I doubt not that the people of Nebraska are, and will continue to be, so good as the average of people elsewhere. I do not say the contrary. What I do say is, that no man is good enough to govern another man, without that other’s consent.”[18]

 

[T]here is no reason in the world why the Negro is not entitled to all the natural rights enumerated in the Declaration of Independence, the right to life, liberty, and the pursuit of happiness. I hold that he is as much entitled to these as the white man. I agree with Judge Douglas he is not my equal in many respects—certainly not in color, perhaps not in moral or intellectual endowment. But in the right to eat the bread, without leave of anybody else, which his own hand earns, he is my equal, and the equal of Judge Douglas, and the equal of every other man.[19]

 

Lincoln’s view, like Jefferson’s, descended directly from John Locke: because the black man and the white man were fundamentally equal, they both had the right to government by consent, and no individual had the right to vote another individual into slavery. To Lincoln, therefore, a society with slavery was inherently illegitimate. It was a society not of right, but of force, and contrary to the principles of equality which were the foundation for the right to create society in the first place. Without that equal consent, government was instead a criminal conspiracy to destroy or enslave the individual—which Locke specifically said was unjust.

            This divide between the wolf and the sheep is important to understanding the division that today still remains over the question of the Civil War.[20] Did the southern states have the fundamental right to govern themselves, or did that right to self-government necessarily rest on a more fundamental right, which, when violated, also vitiated the alleged right to self-government—namely, the right of each person to self-ownership? Could one create a government based not on equality, but on slavery? Was there a right to create a government in which well over half of the population had no say, no right to life, liberty, or property—in which they indeed were property—and then could that government claim to be a just government? Put more simply, the question of the Civil War is, was the Declaration of Independence true or false?

            This is why the Southerners felt called upon to dodge or denounce the Declaration. It held that an act of revolution, to be justified, must be an act of self-defense: a defense of the individual rights of the people who were rebelling. But the Southerners, of course, could point to no such violation of their rights. For instance, the tariff so denounced by Calhoun and Miller, was harsh and unwise—although just as harsh as the Jefferson embargo had been on the North a half century earlier—but it was not unconstitutional. The election of Abraham Lincoln as president was consistent with the Constitutional mechanisms for presidential elections. And Lincoln had made clear that he was not going to interfere with slavery in states where it already existed (which he had no Constitutional authority to do). He did mean to prohibit slavery in the territories (which he did have the Constitutional right to do). The reinforcement of Fort Sumter—which was Federal property—was not a violation of any right on the part of the South. In fact, it was the South which fired first, and the North which was therefore justified in acting in self-defense against that initiation of force—by putting down an act which, despite its claim to be an act of revolution, was in fact a large criminal conspiracy.[21]

            In short, without being able to point to a long train of abuses pursuing the design of reducing them to despotism, the Southern states could not legitimately claim a right to revolt in defense of slavery, because, as Ayn Rand once put it, “Whether a slave society was conquered or chose to be enslaved, it can claim no national rights, and no recognition of such ‘rights’ by civilized countries—just as a mob of gangsters cannot demand a recognition of its ‘rights’ and a legal equality with an industrial concern or a university, on the ground that the gangsters chose by unanimous vote to engage in that particular kind of group activity.”[22]

            Miller notes that the Confederate Constitution “forbid [sic] protectionist tariffs, outlawed government subsidies to private businesses, and made congressional appropriations subject to approval by a two-thirds majority vote.” By reading his catalogue, one might think the Confederacy a veritable libertarian utopia. He does not mention the censorship of the mail, the ban on abolition petitions, the laws against interracial marriage, or even of teaching a slave to read, or even of associating with slaves, all of which were also illegal in the antebellum South.[23] Nor does Miller mention that the Confederate Constitution included a provision that “No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed.”[24] If the Declaration of Independence is right, that the only just government is one based on the consent of the governed, then any attempt to create a government founded on the protection of “the right of property in negro slaves” is a violation of the principle upon which the very right to found governments is based. You cannot have your right of self-government—and eat it, too.

            How did the Southerners get around this little problem? As mentioned before, some were unashamed to call the Declaration of Independence an outright lie. But others, like Calhoun, were cleverer. They held that the Declaration had simply been misunderstood all these years. The revolution had not actually been fought over the inalienable rights of individuals, he argued, but over the rights of societies. As one political scientist has put it, Calhoun had to claim that “[w]hen the fathers spoke of equality, what they really had reference to, was the equality of the American states among other states of the world, or at the most the equality prevailing among white men…. [T]he doctrine of natural rights—that every individual possesses certain rights which are not derived from government, and of which he cannot be justly deprived by government—was either abandoned entirely or interpreted in such a way as to lose all application to the institution of slavery.”[25] According to this view, it is not individuals who are “created equal,” but states, and it is in those states—in those collectives—where the decision may be made: which individuals shall be granted rights? This view turned the Declaration of Independence on its head. Now, all states were created equal, and whenever it is determined to be in the best interests of the state, the individual would be granted rights. This view—which today goes by the name “legal positivism”—was of course utterly contrary to the views of Thomas Jefferson, who argued in Notes on Virginia that “an elective despotism was not the government we fought for.”[26] That sentence would have no meaning in a Calhounian world. Thomas Jefferson’s view—that the individual’s liberty was the foundation of society, and the protections accorded to liberty were a barometer of that society’s health—is the libertarian view. Contrary to Miller’s assertion, the South hardly fought for “the same reason that the American colonies fought the Revolutionary War.” They fought to maintain “the right to property in Negro slaves” without interference from the North, which they called the right to self-determination.

            But if the Confederacy laid no claim to the principles of the Declaration of Independence, why do today’s libertarians do so? I suspect it is because they believe, wrongly, that the Declaration stands for the proposition that a people has the right to create whatever government they wish—that is, that the Declaration announces a fundamental right to the “self-determination of peoples.” Yet this is precisely the opposite of the Declaration’s actual meaning. That document insists that the equal right of all individuals to be free is the indispensable ingredient in creating any government, and that whenever any government violates this fundamental right, it is illegitimate and may be thrown off.

            Others are more sophisticated. They argue that the right to secede is a Constitutional right. This is a more complex question, and it requires an understanding of the nature of the Constitution’s mechanism of divided sovereignty. The short answer is found in Federalist 15, where Alexander Hamilton explained that the fundamental problem with the Articles of Confederation was “the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist.” In other words, the Articles of Confederation failed (as Madison explained) because the authority of the Articles had been “derived from the dependent derivative authority of the legislatures of the states; whereas this [Constitution of 1787] is derived from the superior power of the people.”[27]

            The Constitution of 1787 would therefore not be a treaty among the states, but a separate sovereign—or rather, an expression of the sovereignty of the American people; the people in states, but not as states. While the states would have separate authority and sovereignty for the great mass of governmental powers, the people would form one whole nation for certain specified purposes. The Constitution therefore began not with “We the States,” but with “We the People.” Compare this to the preamble to the Articles of Confederation (Articles of Confederation and perpetual Union between the states…”)[28] or the preamble of the Confederate Constitution. (“We, the people of the Confederate States, each State acting in its sovereign and independent character…do ordain and establish this Constitution.”) [29]    

            When an opponent of the Constitution argued at the Pennsylvania Ratification Convention that “In the Preamble, it is said, We the People, and not We the States, which is therefore a compact between individuals entering into society, and not between separate States enjoying independent power,”[30] James Wilson replied in the affirmative:

 

[M]y position is, that the sovereignty resides in the people, they have not parted with it; they have only dispensed such portions of power as were conceived necessary for the public welfare…. In order to recognize this leading principle, the proposed system sets out with a declaration, that its existence depends upon the supreme authority of the people alone…. When the principle is once settled, that the people are the source of authority, the consequence is, that they may take from the subordinate governments with which they have hitherto trusted them, and place those powers in the general government, if it is thought that they will be productive of more good…. I have no idea, that a safe system of power, in the government, sufficient to manage the general interest of the United States, could be drawn from any other source, or rested in any other authority than that of the people at large, and I consider this authority as the rock on which this structure will stand.[31]

 

In other words, the people were bound to their States and to the Federal government separately, much as one owes separate bills to the electric company and the phone company. And just as the phone company has no authority to permit you to escape paying your electric bill, so the state government has no authority to break the Constitutional compact. States are not parties to the Constitution.

            This question—are the states parties to the Constitution—came to a head during the Nullification Crisis of the 1830s. This crisis, which was sparked by the tariff Miller describes, broke upon the nation when the legislature of South Carolina claimed that the state government had the right to nullify federal laws which, in the state’s view, were unconstitutional. Calhoun “asserted that the states were originally sovereign, and that they had never yielded up their sovereignty. They could not surrender a part and retain another part…. Given the original sovereignty of the states, and the indivisibility of sovereignty, either the states must be sovereign communities and the United States a mere agent, or the United States must be sovereign and the states wholly subordinate.”[32] In other words, the Constitution was a sort of treaty between the states, and the states were therefore free to abrogate it at will. They could “nullify” laws promulgated under it, or could nullify it completely—i.e., secede. He drew much support for this argument on the Virginia and Kentucky Resolutions of 1798, which had been written by James Madison and Thomas Jefferson, respectively.

            But one of Calhoun’s most vehement critics was James Madison himself.[33] Jefferson was dead by this time, and Madison now saw that Jefferson had made something of a mess in those resolutions. Jefferson had made exactly the same argument that Calhoun now, forty years later, had taken up. But back in 1798, Madison had attempted to caution Jefferson to avoid saying that states were parties to the Constitution, or that they had the right to nullify federal acts. While Jefferson was writing his resolutions, Madison had sent him a note, asking “Have you ever considered thoroughly the distinction between the power of the State, & that of the Legislature, on questions relating to the federal pact[?] On the supposition that the former is clearly the ultimate Judge of infractions, it does not follow that the latter is the legitimate organ especially as a convention was the organ by which the Compact was made.”[34] But by the time that note arrived, it was too late: the resolutions had already been mailed. Madison, who had argued since before the Federalist Papers that the states were not parties to the Constitution,[35] had been a little embarrassed then, but he was humiliated now, and he tried to make clear that Jefferson had misspoken: “Allowances also ought to be made for a habit in Mr. Jefferson as in others of great genius of expressing in strong and round terms, impressions of the moment.”[36] The Constitution was binding on the whole people, not on the states, and the states had no right to nullify the laws.

 

T]he characteristic peculiarities of the Constitution are 1. The mode of its formation, 2. The division of the supreme powers of Govt between the States in their united capacity and the States in their individual capacities. 1. It was formed, not by the Governments of the component States, as the Federal Govt. for which it was substituted [i.e., the Articles of Confederation] was formed; nor was it formed by a majority of the people of the U.S. as a single community in the manner of a consolidated Government. It was formed by the States-that is by the people in each of the States, acting in their highest sovereign capacity; and formed, consequently, by the same authority which formed the State Constitutions. Being thus derived from the same source as the Constitutions of the States, it has within each State, the same authority as the Constitution of the State, and is as much a Constitution, in the strict sense of the term, within its prescribed sphere, as the Constitutions of the States are within their respective spheres, but with this obvious & essential difference, that being a compact among the States in their highest sovereign capacity, and constituting the people thereof one people for certain purposes, it cannot be altered or annulled at the will of the States individually, as the Constitution of a State may be at its individual will.[37]

 

Is a state therefore never permitted to leave the union? No, there is a Constitutional mechanism provided for allowing states to leave: a bill may pass through the Congress to allow the representatives of the people to vote on it.[38]
             Since the states are not parties to the Constitution, but We the People of the United States are, only the people, through their representatives in Congress, have the right to permit a state to leave the union, just as only they have the right to allow a state to join the union. (In fact, Madison had been so perspicacious on the matter that he had insisted the Constitution must be ratified by special conventions, not state legislatures, because the latter mechanism would give the wrong impression, that the states were parties to the compact) America’s recent divestiture of the Philipenes is an example of the Constitutional mechanism provided for a territory or a State which wishes to leave the union.

            The structural limitations on a state’s “right to secede” are echoed elsewhere in the Constitution. As Lincoln pointed out in his July 4, 1861 speech to the Congress,[39] the Constitution guarantees to every state a republican form of government. Such a guaranty would be meaningless were a State able to secede from the union: a criminal conspiracy might gather together, declare themselves the rightful government of, say, South Carolina, pass a resolution purporting to absolve the citizens of further allegiance to the Federal Government, and—were secession possible without Congressional approval—proceed to create a State constitution which violated the principles of republicanism. In fact, this is precisely what happened in South Carolina in 1861. It was therefore proper for the President, who is entrusted with the duty to see that the laws are faithfully executed, to enforce the supreme law of the land.[40]

            Why do libertarians defend the cause of an awful tyranny like the Confederacy? I think there are three reasons. First, because they misunderstand the principles of the Declaration, and believe that any people have the right to create any government they wish, without outside interference. But this principle, as Lincoln explained, reduces to no more than this: “that ‘if one man would enslave another, no third man should object.’”[41] The right to form a government can only be based on the equal right of all to self-ownership.

            Second, I think libertarians want to pin the blame for the vast expansion of Federal bureaucracy on someone, and Lincoln is a handy target. He instituted a military draft, issued paper currency, and created our first income tax. Of course, these things were done as war measures, and Lincoln openly acknowledged that they were legitimate only under the president’s war powers, which are far more sweeping than his powers in peace time. Even the Emancipation Proclamation was justified purely as a war measure, because he acknowledged that it was permitted only under the more general power of the president as commander in chief (a theory which Constitutional scholars had been advocating since at least John Quincy Adams). But attacking specific policies of Lincoln’s execution of the war is a very different matter than claiming the South had the constitutional right to secede, or that it could base its act on the right to revolution. A number of the policies undertaken by Lincoln (and more often, his generals in the field) are indefensible, except perhaps by the president’s affirmative duty to enforce the Constitution. But just as police brutality during an arrest cannot absolve a murderer of his crimes, so Lincoln’s wrongful acts cannot justify the southern rebellion.

            The third reason so many libertarians defend the Confederacy is that we like rebellion, and we wish we could see more of it. The Federal government has grown so far beyond its original Constitutional limitations that it would be very refreshing to see states show a little resistance today. Certainly I can sympathize with this. In fact, by the principles of the Declaration of Independence, a state would have far more justification seceding from the union now than in 1860! And this was a large part of the reason that I was a modern day sessesh myself for a long while. But the cause of the South simply cannot be justified by the principles of the Constitution or the Declaration of Independence—the guiding principles of libertarianism. The right of the people to govern themselves is not fundamental. The right to freedom is. If the former contradicts the latter, the former must be exposed for the tyrannical monstrosity that it is. Those who claim the right to enslave with impunity must be treated as criminals, be they Nazis, Communists, or Calhounites.

            It is indeed distressing to see libertarians—advocates of individual liberty above all else—defend a society based on crushing that liberty under the so-called “right to self-determination.” It is even more distressing to see them misunderstand and misapply the doctrines of the Declaration of Independence or the Constitution. Just before the Civil War, William Lloyd Garrison, the radical abolitionist leader, shocked his audience by publicly burning a copy of the Constitution. It was an evil document, he said, because it had included provisions protecting slavery. One of Garrison’s colleagues strongly disagreed, and eventually broke off his friendship with Garrison, over this act. This was Frederick Douglass, a former slave, who had escaped to become a great orator and author. Before the war, Douglass gave a speech called “What to the Slave is the Fourth of July?” And in that speech, in response to Garrison as well as the Southerner, Douglass said a sentence which should be the watchword for all libertarians today. “Interpreted as it ought to be interpreted,” Douglass said, “the Constitution is a GLORIOUS LIBERTY DOCUMENT.”