“I propose to fight it out on this line if it takes all summer.”—Gen. Ulysses S. Grant¹

 

Why Joseph Sobran Is Wrong About The Civil War

 

 

 

Although I usually try not to indulge in long published debates, I made an exception in the case of my articles on the Civil War because I believe the issues involved are so important, and that so many libertarians misunderstand them—and understandably so. We cherish a little rebellion now and then, and we resent the monstrous proportions to which the federal government has grown. We long for a time when Americans would stand up for their rights against the encroachments of Washington, D.C., and we think that that spirit lay at the heart of the rebellion of 1861.

            In my case, I was convinced of the legitimacy of secession by Thomas Jefferson’s Kentucky Resolutions, which I read in high school. His argument seemed so reasonable: the Constitution was a league between the states, and whenever the federal government stepped beyond the bounds of the Constitution, those states could defend their rights. The Civil War, I came to believe, wasn’t really about slavery—it was about the rights of states to leave the union, just like a person quitting a fraternity if he wanted to. And although a person might quit the fraternity for a reason we think unjust, that doesn’t mean he has no right to leave; so, too, a state had the right to secede if it wanted, even if it did so in defense of something as wrong as slavery.

            Since I attended public school, my teachers knew nothing about the Constitution, and could not explain the issues involved. So it took me a long time to uncover the errors in this interpretation. Doing so requires a systematic and careful examination of both the Constitution and the libertarian theory of rights and revolution. Questions of Constitutional law and of natural rights are complicated, but, as Alexander Hamilton put it in the Federalist, “[i]f the road over which you still have to pass should in some places appear to you tedious or irksome, you will recollect that you are in quest of information on a subject the most momentous that can engage the attention of a free people.”²

 

A Systematic Understanding

 

Addressing the Civil War involves a two-part analysis. The first step is the question: is unilateral secession constitutional? We must answer this question first because, if the answer is yes, then our inquiry is at an end: the south should have been allowed to go, and Lincoln was wrong to put it down by the use of force. But if the answer is no, there we must move to the second step: was the south engaged in an act of revolution? Even illegal acts, like the American Revolution, are justified by the right of revolution, so even if the Constitution does prohibit secession, the southern states had the right to leave the union, if their act was a legitimate act of revolution. It is important to keep in mind the distinction between secession and revolution. As Lincoln wrote, “It might seem, at first thought, to be of little difference whether the present movement at the South be called ‘secession’ or ‘rebellion.’ The movers, however, well understand the difference.”³

            It is also important to keep in mind what we are not discussing. The question of Lincoln’s war tactics is irrelevant to the Constitutionality of secession, or whether the secession of 1861 was a legitimate revolution. The question of whether Alexander Stephens thought secession was a good idea is irrelevant, and the question of whether Jefferson Davis read the Federalist is irrelevant. The essential questions of the Civil War are: first, is secession Constitutional? Second, if the answer is no, was the act of 1861 a legitimate revolution?

            A quick caveat, however: one objection I have heard regarding my previous articles is that I base my argument on the premises of “social compact” theory. For instance, Stephan Kinsella has written that “[a]nother problem with Sandefur’s approach is his extensive reliance on legal fictions,” including social compact and tacit consent.⁴ I will lay aside the ironic point that there is no greater legal fiction than “state sovereignty,” or “the right to secede.” Although there are certainly legitimate libertarian arguments against social compact theory, I do not believe that libertarianism is inherently inconsistent with that theory. In any case, my argument is indeed based on an acceptance of social compact theory, including the concept of “tacit consent.” I don’t think it is necessarily contradictory to libertarianism as a result.

 

The Constitution As A Government of the People

 

Jefferson’s fundamental misunderstanding in the Kentucky Resolutions—which misled me, when I was young—was his premise that the Constitution is a sort of league between the states. When I first read the Resolutions, I did not understand this subtle point (nor did I know that in 1798, Madison had tried to explain to Jefferson that this was wrong.)

            But if the Constitution is not a treaty between the states, what is it? There are three perspectives with regard to national sovereignty as it exists in the 1787 Constitution. In his article, Joseph Sobran makes valid arguments against one of these views, but his target is not the perspective which I have endorsed, and his arguments fall short of proving what he wants to prove. Because I fear that my previous article was ambiguous on this score, I will try to clarify by looking at these three perspectives in turn.

            The first was the view which lay at the heart of secession and the Confederacy. This view, most famously espoused by John C. Calhoun, was that the Constitution was a kind of treaty between the states; the states had simply delegated some of their authority to the government in Washington, and could therefore withdraw their allegiance whenever they wanted. As we will see in what follows, this “compact view” of the Constitution is inconsistent with history, the plain language of the Constitution, the debates at the Philadelphia convention, the explanations at the ratification conventions.

            The second was the view most famously espoused by Daniel Webster—the “consolidationist,” or strong-union view. According to this theory, the union of states was created by the Declaration of Independence, and is, so to speak, sub-constitutional. This view, which was adopted by people as diverse as Abraham Lincoln, Charles Sumner, and Lysander Spooner, argued that the sovereignty of the states was itself a product of national sovereignty. This view has much to commend it; the Declaration of Independence, for instance, was issued in the name of the “thirteen united States of America,” who, as “one people” were breaking their former political bonds, and declaring that “these united colonies are free and independent states.” It then goes on to describe what “free and independent states may of right do”—things like carrying on foreign policy—none of which were actually done by the states. In fact, at the 1787 Philadelphia Convention, Delegate Rufus King explained that

 

The states were not “sovereigns” in the sense contended for by some. They did not possess the peculiar features of sovereignty,—they could not make war, nor peace, nor alliances, nor treaties. Considering them as political beings, they were dumb, for they could not speak to any foreign sovereign whatever. They were deaf, for they could not hear any propositions from such sovereign. They had not even the organs or faculties of defence or offence, for they could not of themselves raise troops, or equip vessels, for war.... If the states, therefore, retained some portion of their sovereignty [after declaring independence], they had certainly divested themselves of essential portions of it.⁵

 

James Wilson (a signer of the Declaration) agreed, saying that he “could not admit the doctrine that when the colonies became independent of Great Britain, they became independent also of each other. He read the Declaration of Independence, observing thereon, that the United Colonies were declared free and independent states, and inferring, that they were independent, not individually, but unitedly, and that they were confederated, as they were independent states.”⁶ Consequently, the Constitution of 1787 did not purport to create the union, only to make it “more perfect.” Jefferson and Madison called the Declaration of Independence “the fundamental act of union of these States,”⁷ and even at the South Carolina Ratification Convention, when one delegate claimed that “[t]he [1783] treaty of peace expressly agreed to acknowledge us as free, sovereign, and independent states...[b]ut this new Constitution at once swept those privileges away, being sovereign over all,”⁸ Charles Cotesworth Pinckney of South Carolina answered that “[t]he separate independence and individual sovereignty of the several states were never thought of by the enlightened band of patriots who framed this Declaration; the several states are not even mentioned by name in any part of it,—as if it was intended to impress this maxim on America, that our freedom and independence arose from our union, and that without it we could neither be free nor independent.”⁹

            I find the strong-union view attractive, and in my last article, I had kind words to say for it. But, as Sobran rightly points out, there are ambiguities which undermine this view. The Articles of Confederation did acknowledge the separate sovereignty of the American states, and the fact that the Continental Congress carried out foreign policy only shows that the federative power,¹⁰ which is only part of the national sovereignty, was vested in the national government. The nature of federal sovereignty at the time of the American founding was at least ambiguous¹¹—surely one reason that the union needed to be made more perfect eleven years later.

            The third view, which I do endorse, was most famously espoused by James Madison; we might call it the weak-union view. According to it, the Articles of Confederation did indeed acknowledge the separate sovereignty of the American states—and that was exactly the problem. Hamilton put it well in a sentence which is the theme of the entire Federalist: “The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist.”¹² The new Constitution would solve this problem by creating a new kind of government—one of “divided sovereignty,” partly national and partly federal, in which all of the people of America would vest the national government with a part—limited and enumerated—of their sovereignty. The national sovereignty would therefore be totally separate from the sovereignty of the states. As Madison explained, the Articles of Confederation were “derived from the dependent derivative authority of the legislatures of the states; whereas this [Constitution] is derived from the superior power of the people.”¹³ The Constitution did not consolidate the states entirely, but “[s]hould all the States adopt it, it will be then a government established by the thirteen States of America, not through the intervention of the Legislatures, but by the people at large.”¹⁴ This is why the Constitution was ratified by special ratification conventions rather than state governments: to make clear that the states were not parties to the Constitutional compact. Thus, contrary to the strong-union view, the sovereignty of the states did not depend on the creation of the federal authority; they were two independent systems, in which the federal power was supreme within its limited sphere—and nonexistent outside of that sphere.

            What is important to note about these three views is that under either the weak-union view, which I have adopted, or the strong-union view, which Lincoln adopted, states have no unilateral power to secede. It is therefore unnecessary to resolve the question of whether the union was created by the Declaration of Independence or not, because ratification resolved the fundamental point: the federal union was a compact between the people, not the states. Although Sobran makes good points in attacking the soft spots in the strong-union view, this does not change the fact that the sovereignty of the union is independent of state sovereignty—it binds the whole people of America together as one people for certain purposes—and therefore that a state may not unilaterally secede.

 

What Does Divided Sovereignty Mean?¹⁵

 

The people, who adopted the Constitution, may decide to allow the people of a state to leave the union—through Congressional action (according to the weak-union view), or by adopting a Constitutional Amendment (according to the strong-union view)—but because the sovereignty of a state is distinct from that of the union, a state can no more absolve its people of their allegiance to the federal government than the gas company can absolve you of paying your electric bill.

            Sobran calls divided sovereignty “terribly refined…nonsense,” and Kinsella is totally baffled by it (“Hunh?” he writes, “What the heck does this mean?”) Because understanding divided sovereignty is basic to understanding the Constitution, let us examine it further. “In the compound republic of America,” said Madison, “the power surrendered by the people is first divided between two distinct governments....”¹⁶ But “[t]he main [fallacy] of nullification,” he later explained,

 

is the assumption that sovereignty is a unit, at once indivisible and unalienable; that the states therefore individually retain it entire as they originally held it, and, consequently, that no portion of it can belong to the U.S.... [W]here does the sovereignty which makes such a Constitution reside[?] It resides not in a single state but in the people of each of the several states, uniting with those of the others in the express & solemn compact which forms the Constitution. To the extent of that compact or Constitution, therefore, the people of the several States must be a sovereign as they are a united people.... That a sovereignty should have even been denied to the States in their united character, may well excite wonder, when it is recollected that the Constitution which now unites them, was announced by the convention which formed it, as dividing sovereignty between the Union & the States; that it was presented under that view, by contemporary expositions recommending it to the ratifying authorities; that it has proved to have been so understood by the language which has been applied to it constantly….¹⁷

 

Divided sovereignty (also called “dual sovereignty”), was the principal innovation of the Constitution. While the strong-union view saw ratification as simply an overhauling of the union, to the weak-union view, ratification reformed the sovereignty of the states as well as of the federal government. But according to both views, federal sovereignty is independent of the sovereignty of the states. Even Anti-Federalists acknowledged that ratifying the Constitution meant redefining American sovereignty. “Cincinnatus,” for instance, complained that “[s]uch is the anxiety manifested by the framers of the proposed constitution, for the utter extinction of the state sovereignties, that they were not content with taking from them every attribute of sovereignty, but would not leave them even the name.—Therefore, in the very commencement they prescribe this remarkable declaration—We the People of the United States.”¹⁸ The “Federal Farmer” wrote that “when the people [of each state] shall adopt the proposed…it will be adopted not by the people of New Hampshire, Massachusetts, &c., but by the people of the United States….”¹⁹ As I showed in my previous articles, “Brutus” and Patrick Henry expressed similar fears, which Federalists allayed by explaining that the Constitution did not extinguish state sovereignty; it reconstituted it. For most purposes, the people of the states would find their state citizenship unchanged, but for a specified list of other purposes, the whole people of America were now agreeing, as a single political unit, to invest the new Constitution with sovereignty directly, not through the intermediary step of state authorities. The federal and the state sovereignty travel, as it were, on parallel rails: state sovereignty connecting the sovereignty of the people of a state to their state capitol; federal sovereignty joining all the people through its national network, to arrive at Washington, D.C. In my previous articles, I quoted James Wilson’s explanation at the Pennsylvania Ratification Convention 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.²⁰

 

So while the states would, for the most part, retain their sovereignty, ratification meant that the whole people of the United States would now agree to vest their inchoate power to engage in, for example, foreign policy, in the federal government, which would be supreme for the limited, enumerated purposes of the Constitution (such as the power to engage in foreign policy); otherwise, wrote Hamilton, the Constitution would “be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY....”²¹

Sobran’s response to this is that “‘We the people of the United States’ ratified the Constitution as members of distinct states, not en masse by national referendum.” But Chief Justice John Marshall (who had been a delegate to the Virginia Ratification Convention) answered that in McColloch v. Maryland: “[The Constitution] was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in Convention. It is true, they assembled in their several States—and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments.”²² This was not just the opinion of High Federalists. As Madison explained, the Constitution was formed

 

by the people in each of the States, acting in their highest sovereign capacity.... Being thus derived from the same source as the Constitutions of the States, it...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.²³

 

These sources—as well as those cited in my previous articles—reveal how well understood was the central fact that the Constitution was a government of the whole people of the United States, not a league or treaty of states in their corporate capacities. In Marshall’s words, federal sovereignty

 

proceeds directly from the people; is ‘ordained and established’ in the name of the people.... It required not the affirmance, and could not be negatived, by the State governments. The constitution, when thus adopted, was of complete obligation, and bound the State sovereignties....  The government of the Union, then…is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.... [T]he government of the Union, though limited in its powers, is supreme within its sphere of action.²⁴

 

The federal government is directly vested with sovereignty of the people of the United States. Secession is not, therefore, like a person leaving a club—because the states are not in the “club” to begin with. Only “We the People” are members of the club, and only that “people” which created it can change it, by altering the contours of that “people” through an amendment, or a new Constitutional Convention. So, while the whole people may allow a state out of the union, or may even dissolve the Constitution entirely, a state cannot claim on its own the authority to withdraw from the union. Lincoln put it with dry understatement when he noted that advocates of secession were “not partial to that power which made the Constitution, and speaks from the preamble, calling itself ‘We, the People.’”²⁵

 

Other Clauses

 

Although the nature of the Constitution is the most fundamental reason that secession is unconstitutional, a number of clauses are also inconsistent with the alleged constitutionality of secession. The Constitution guarantees to every state a republican form of government, prohibits states from entering into any compact with other states without Congressional permission, and prohibits states from entering into any “Treaty, Alliance, or Confederation,” even with Congressional approval. These clauses would be rendered null if secession were constitutional. In his first article, Sobran argued that these clauses bind states only so long as they have chosen not to secede. As I pointed out in reply, this begs the question. If a state can unilaterally secede, then any group of criminals might declare themselves the “rightful” government of a state, and issue a proclamation of secession—and then the federal government could do nothing. In other words, under Sobran’s interpretation, the situations in which these clauses would become operative would be those under which they could no longer operate. Sobran has not replied to this challenge, nor addressed how the Supremacy Clause, the Oaths Clause, or various other parts of the Constitution make any sense if secession is constitutional.

            Another popular argument is that the Tenth Amendment reserves to the states the power to secede from the union. This, too, begs the question, in two ways. The Amendment says that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” First, since the Constitution does prohibit secession, that power cannot be reserved to the states. And, second, the Amendment refers explicitly to “the people.” What “people”? Not to the people of each state separately, but to a single people: that is, “We the People” who ratified the Constitution. (Strong-unionists would argue that this is the same “one people” who dissolved their political bands with England.²⁶) But under the compact theory, this clause would be surplusage, since no mere league of sovereigns has any authority to reserve nondelegated powers directly to the people of separate sovereignties, any more than the United Nations can “reserve” any rights to the people of the United States.

            Mr. Sobran misses the point elsewhere, too: for example, he writes that “Mr. Sandefur also seems to confuse nullification and secession; nullification was a novelty, all right...”—but I quoted Madison’s comment calling nullification a novelty not to refute nullification, but in response to the premise shared by both nullification and secession: namely, the view that (again quoting Madison) “the Constitution of the U.S. which as such, and under that name, was presented to & accepted by those who ratified it; which has been so deemed & so called by those living under it for nearly half a century; and, as such sworn to by every officer, state as well as federal, is yet no Constitution, but a treaty, a league, or at most a confederacy among nations, as independent and sovereign, in relation to each other, as before the charter which calls itself a Constitution was formed.”²⁷ This is what Madison called a “novel” doctrine, and it lies at the heart of both nullification and secession.

            Stranger is Sobran’s argument that before the Jackson Administration, nobody ever denied that states could unilaterally secede. First, this is not true. James Wilson explained to the Pennsylvania Ratification Convention that the Constitution would make “the bonds of our Union…indissolubly strong.”²⁸ James Madison wrote that the constitution must be adopted “in toto and for ever.”²⁹ And Alexander Hamilton wrote in Federalist 22 that one of the “infirmities” of the Articles of Confederation was

 

that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.³⁰

 

Second, the Hartford Convention of 1814, where, as Sobran notes, some New England representatives seemed to advocate secession, was extremely controversial, and contributed mightily to the destruction of the Federalist Party—one southern editor denouncing the Convention wrote that “no state or set of states has a right to withdraw itself from the Union of its own accord…. [A]ny attempt to dissolve the Union…is Treason.”³¹ John Quincy Adams arraigned the Hartford Convention in a lengthy essay in which he explained that the Constitution was not a compact between the states, and could not therefore be abrogated by states.³² While some abolitionists may have advocated secession before 1814, I do not know of them—William Lloyd Garrison’s famous burning of the Constitution came in 1854; he was ten years old during the Jackson Administration.³³ And while I know of no lengthy discussions of the fallacies of secession before that period, I also know of no argument in favor of secession predating that period. This in itself is evidence of the impossibility of unilateral secession, as Akhil Reed Amar points out: “The strongest historical evidence against secession, however, was not what the Federalists said but what they did not say. To my knowledge, no major proponent of the Constitution sought to win over states’ rightists by conceding that states could unilaterally nullify or secede in the event of perceived national abuses. The Federalists’ silence is especially impressive because such a concession might have dramatically improved the document's ratification prospects in several states.”³⁴ “[I]f a more explicit guard against misconstruction was not provided,” wrote Madison in 1831, “it is explained in this as in other cases of omission, by the entire absence of apprehension that it could be necessary. Who could, at that day, have forseen some of the comments on the Constitution advanced at present?”³⁵

            In any case, radicals calling for disunion do not change the Constitution’s nature: it is a government of the whole people; as such, a single state has no unilateral power to secede.³⁶ Of course, as we shall see, the people may engage in revolution whenever a long train of abuses has evinced a design to reduce them under absolute despotism. But in 1861, the south seceded, not to defend individual rights against tyranny, but to defend the right to enslave others without the interference of the federal government.

            Incidentally, I can’t help but notice Mr. Sobran’s silence on a major point. In his first article, he argued that states which ratified the Constitution simultaneously passed resolutions “reserving” the “right to secede.” In my response, I pointed out that only three states did so—only one of which did later secede—and I quoted these alleged reservations, showing that they actually referred not to any reserved right to leave the union unilaterally, but simply to the right of the people to revolution, which neither I, nor Madison, nor Lincoln, ever denied. To this, Sobran has not responded, and I hope this means I have convinced him. I will therefore indulge my temptation to do the same with the Hartford Resolutions. Although Convention scandalized the nation by seeming to call for secession, the Resolutions nowhere use the word “secede,” or any euphemism for it. The only suggestion they give of adopting the Calhounian view of the Constitution is when they call for “the Legislatures of the several States represented in this Convention, to adopt all such measures as may be necessary effectually to protect the citizens of said States from the operation and effects of all [federal] acts which…which shall contain provisions…not authorized by the Constitution….”³⁷ The Hartford Resolutions were widely condemned; the legislature of New York rejected the Hartford Resolutions on the ground that the Constitution prohibited states from entering into alliances without Congressional permission. Even the Massachusetts legislature, in one of its resolutions calling for the Hartford Convention, acknowledged that “the whole people [not the states]…were parties to [the Constitution].”³⁸ This, of course, echoed Massachusetts’ reaction to the Kentucky Resolutions forty years before, when the state legislature explained that “the people themselves, [and not the states] by a solemn compact, have exclusively committed their national concerns” to the federal government.

            Does this all mean that a state may never leave the union? No. Contrary to Kinsella’s mischaracterization, I have never said that the union is “irrevocable.”³⁹ Instead, my position is that the Constitution does allow states to leave the union—but requires that the whole people of the United States have a say in the matter. Because the Constitution was created by the whole people, it can only be constitutionally altered by the agreement of the whole people. To give one example, the people of New York have a Constitutional right to travel to, say, Virginia—protected by the Privileges and Immunities clause of Article IV. They cannot be constitutionally deprived of that right without their consent (through their representatives, of course). Thus, allowing Virginia out of the union would require the consent of the whole people, through either Congressional action or a constitutional amendment.

 

The Right To Revolution

 

Once the Constitutionality question has been answered, we move to the second question: was the secession of 1861 a legitimate revolution? It is at this stage of the analysis that the question of slavery becomes relevant. Like many others, Sobran says that “the Civil War was fought over secession, not slavery.” And he is correct that “[t]he validity of a legal right doesn’t depend on the purpose for which it is exercised.” It is true that slavery is immaterial to the question of whether secession is Constitutional. But if we answer that question in the negative, we move to the second question: and in that discussion, slavery is central.

            Madison never denied that all people retain the right to revolution. Nor did Abraham Lincoln. Even in his Inaugural Address, Lincoln said that “[i]f, by the mere force of numbers, a majority should deprive a minority of any clearly written constitutional right, it might, in a moral point of view, justify revolution—certainly would, if such right were a vital one. But such is not our case.”⁴⁰ Even though the Constitution is a compact between the whole people of the United States, and thus is alterable by the whole people only, any individual or group retains the inalienable right to fight against tyranny.

            What is revolution? According to libertarianism, as espoused by John Locke, Thomas Jefferson, and others, the individual’s right to own himself puts him on a par with all other individuals in a state of nature. Before government exists, each person has the same right to run his own life as every other person, and that right to self-ownership includes the right to self-defense. Since the state of nature is harsh and difficult, however, people agree to join a social compact by giving the government a part of their right to self-defense: the power to protect their lives, liberties, and estates. But it has no power to violate their rights, because no individual in the state of nature has that power to begin with, and cannot therefore confer that power on the government. “[T]he Legislat[ur]e,” wrote Locke, “is not, nor can possibly be, absolutely Arbitrary over the Lives and Fortunes of the People. For it being but the joynt power of every Member of the Society given up to that Person or Assembly which is Legislator, it can be no more than those persons had in a State of Nature before they enter’d into Society, and gave it up to the Community. For no Body can transfer to another more power than he has in himself; and no Body has an absolute Arbitrary Power...[to] take away the Life or Property of another.”⁴¹ Thus when the government “endeavour[s] to take away and destroy the Property of the People, or to reduce them to Slavery under Arbitrary Power…and either by Ambition, Fear, Folly, or Corruption, endeavour to grasp themselves, or put into the hands of any other an Absolute Power over the Lives, Liberties, and Estates of the People; By this breach of Trust they forfeit the Power, the People had put into their hands, for quite contrary ends, and it devolves to the People, who have a Right to resume their original Liberty….”⁴²

            The right to self-ownership allows individuals to agree to a social compact, and the right of self-defense gives it legitimacy. Any society which contradicts these fundamental premises—government based on inequality and slavery—is therefore not a legitimate government, but a criminal gang, and it cannot excuse its robbery or enslavement by claiming that the majority voted for that, because the majority has no right to enslave others in the first place. Such a government may rightly be overthrown.

            These principles have never been more succinctly expressed than in the Declaration of Independence, which reads as a sort of syllogism: “all men are created equal... endowed by their Creator with certain unalienable Rights... among these are Life, Liberty and the pursuit of Happiness... to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed... whenever any Form of Government becomes destructive of these ends... it is their right, it is their duty, to throw off such Government....” Or, as Lincoln summarized it,

 

Judge Douglas frequently, 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 as 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. I say this is the leading principle—the sheet anchor of American republicanism.⁴³

 

This is all familiar to libertarians, because it is just a lengthy rephrasing of our famous maxim against the initiation of force. It explains why the American Revolution was rightful. Parliament had declared its right to “bind [the American colonies] in all cases whatsoever,” and engaged in “a long train of abuses and usurpations, pursuing invariably…a design to reduce them under absolute Despotism,” which permitted the Americans to defend themselves by throwing off such government, even if doing so cost many lives. This dedication to bear any burden in defending oneself, and one’s liberty, is one of the defining merits of classical liberalism. As Frederick Douglass put it, “Your fathers...were peace men; but they preferred revolution to peaceful submission to bondage. They were quiet men; but they did not shrink from agitating against oppression. They showed forbearance; but that they knew its limits. They believed in order; but not in the order of tyranny.  With them, nothing was ‘settled’ that was not right. With them, justice, liberty and humanity were ‘final;’ not slavery and oppression. You may well cherish the memory of such men.... They seized upon eternal principles, and set a glorious example in their defense.”⁴⁴

            I have emphasized this point lest it be thought that Mr. Sobran and I are gleefully murdering off millions of hypothetical Americans in order to free the slaves. In a flight of hyperbole in my last article, I said that slavery is so evil that it was worth all the awful depredations of the Civil War to end it, and would have been worth more. “I’ll raise [Sandefur],” writes Sobran, “I’ll stipulate that 600,000,000,000 deaths would have been a cheap price to free a single slave.” For fear that these numbers might horrify those who are not paying close attention, neither I, nor, I’m sure, Mr. Sobran, are indulging in bloodlust. Libertarianism is a peaceful philosophy, which dreads warfare, and believes that liberty is essential to securing any peace deserving of the name. Unfortunately, in the wake of Vietnam, many Americans have fallen into the trap of believing in what is often called the “right to self-determination”: the notion that all governments are equally valid, and that America has no right to interfere with other countries, even if they are oppressive. This is often expressed as, “But, if the people vote for communism, then it’s okay!”—or, as Lincoln called it, the “Popular Sovereignty principle, which means, if one man would enslave another, no third man should object.”⁴⁵

            This is not the libertarian view. We believe that political institutions are justified only insofar as they protect the freedom of the individuals who make up that society. In self-defense, people always retain the right to revolution (and, any other nation which wishes to aid a people by ousting their dictator is justified in doing so, though they have no duty to). But no dictator, and no people, has the right to enslave, even if they claim that they are engaging in revolution. The difference between a legitimate revolution and a crime is that the former is an kind of self-defense, undertaken to protect individual rights, while the latter is an initiation of force, to violate the rights of others, or protect the proceeds of some robbery. In the former case, libertarians, like so many generations of our forebears, believe that no price is too great to pay for freedom. As Jefferson once said, “all men know that war is a losing game to both parties. But they know also that if they do not resist encroachment at some point, all will be taken from them.... It is the melancholy law of human societies to be compelled sometimes to choose a great evil in order to ward off a greater….”⁴⁶

            In analyzing the “revolution” of 1861, therefore, we must have reference to the question of slavery. Why did the Confederacy fire on Fort Sumter? Why did they break the supreme law of the land by declaring themselves no longer part of the union? The answer is, in order to preserve their slave property from interference by the federal government. Or, more accurately, in reaction against the election of a President who had pledged himself to halt the spread of slavery into the western territories (which he did have the constitutional authority to do). Although the Confederates phrased their arguments in terms of “freedom,” it was the “freedom to enslave” that they were defending. This made the Confederacy an illegitimate government, rather like the communist coups taking place on an hourly basis in South America. When the Confederacy initiated force by firing on Fort Sumter, therefore, it became the responsibility of the President to “take Care that the Laws be faithfully executed,”⁴⁷ including the supreme law of the land, by putting down the rebellion by force if necessary. (Sobran’s statement that “The president is sworn to uphold the Constitution, not to ‘save the Union’ at all costs to the Constitution,” begs the question. The president is sworn to see that the laws are faithfully executed. This includes the Constitution itself, which is the supreme law of the land, and in serving that duty, the President has all executive power.)

            This is the answer to our second question: the secession of 1861 was not a legitimate revolution. Its “cornerstone” rested on the “the great truth that the negro is not equal to the white man; that slavery—subordination to the superior race—is his natural and normal condition.”⁴⁸ The Constitution of the Confederacy protected slavery from any government interference. The Confederacy seceded, not in response to the initiation of force, but in response to the election of Abraham Lincoln—no radical abolitionist, as other anti-Lincoln writers have emphasized—and fired upon Fort Sumter, which was federal property.

            It was illegal for the American Patriots to fire on the Redcoats in 1776, but they did so because the British had violated the natural rights of Americans, and declared the right to “bind them in all cases whatsoever.” The American Revolution was based explicitly on the principles of equality and the right of individuals to own themselves. The Confederacy’s attack on Fort Sumter, on the other hand, was engaged explicitly in the name of defending the “right” to enslave without the interference of federal authorities, and in defense of a Constitution explicitly protecting “right of property in negro slaves.”⁴⁹ The libertarian theory of revolution is inconsistent with that practice, and cannot therefore justify armed rebellion in its defense. 

 

To Sum Up

 

Sobran has made some valid points against the strong-union view. But those points are irrelevant, because under either the strong-union or the weak-union views, the Constitution is a compact between the whole “People of the United States.”  Only that “people” has the right to alter the Constitution or the union. They may allow a portion of “the people” to leave, but because states are not parties to the Constitution, states have no unilateral authority to intercede between Americans and their own federal citizenship. Only under Calhoun’s “compact” view of the Constitution, can a state have the constitutional right to secede. But as we have seen, that view is wrong. The Constitution does not depend on the states for its validity, and cannot be negatived by the states. Various clauses of the Constitution are also inconsistent with a theory of constitutional secession. Sobran’s purported “reservations” have not panned out; the Kentucky and Virginia Resolutions were resoundingly rejected—even one of their authors admitted that they mischaracterized the federal union—and Sobran’s latest invocation, the Resolutions of the Hartford Convention, came nowhere near defending the compact view of the Constitution; even the instrument calling for that Convention acknowledged that the federal union was a sovereign government of the whole American people.

            Now, the foregoing has explicitly relied on certain legal fictions—concepts like sovereignty, social compact, state’s rights, or “a whole people for certain purposes.” These legal fictions, however, are instrumental to understanding the Constitution, which was based on them. If those who defend the Confederacy wish to hang their theoretical hat on a rejection of social compact, or of legal fictions in general, they may. But I do not think that libertarianism is inherently opposed to such useful theoretical constructs. What’s more, since the Confederate Constitution was also based on a social compact theory, such a defense would ultimately prove self-contradictory.

            I have also tried to make clear what I am not saying. I am not defending the military draft, which Lincoln instituted in response to Jefferson Davis’ institution of a draft for the Confederate Army. I am not defending paper currency, the income tax, or the suppression of freedom of the press. Most importantly, I am not defending the Whig program of internal improvements, or the modern welfare state. These things are routinely invoked in the Civil War debate as a way to (in a popular phrase of the post-Civil War era) “wave the bloody shirt.” The implication is that whoever thinks secession is unconstitutional must be a New Dealer. Of course, even if it could be shown that erecting the welfare state was the price America paid for ending slavery, that would still have been a bargain—defenders of the south have no business waving the bloody shirt.

            But of course, the welfare state was not a consequence of Union victory. That allegation is the result of a simplistic view of history which searches through the past for some bogeyman on whom to pin the blame for America’s Fall. (I even know some libertarians who think that it all went to hell with the Louisiana Purchase!) But the regulatory welfare state is much more a legacy of the Populist and Progressive movements of (roughly) 1880-1920—which rejected natural rights entirely, and sought refuge in bureaucracy and direct democracy—and of their descendants in the New Deal and Great Society. There have always been, and will always be, those who think that government should run our lives, and that federal bureaucracies are somehow more effective than state authorities. There have always been abuses at the state and federal levels—lynch mobs and segregationists hiding behind state’s rights, and welfare statists promising federal chickens in every pot. If it had not been for Woodrow Wilson, someone would still have clamored for a Federal Reserve, and there would still be those demanding a Department of the Interior had Teddy Roosevelt never been born. Yet, to read the statements of libertarian defenders of the Confederacy, one might imagine that, if only Stephen Douglas had won in 1860, we would all be living in Galt’s Gulch.

While it’s true that the federal-state relationship was never the same after the Civil War, it does not follow that the Union’s victory caused the modern federal bureaucracy, and even were that true, how would this conclusion help us? Our energies are far better spent in understanding how state’s rights really work—how federal sovereignty is really constituted—and how we can prevent the further growth of federal (and state!) bureaucracies. One can believe in both federal supremacy and state’s rights; one can believe that the north was right, and that the federal government is one of limited and enumerated powers.⁵⁰ By focusing on irrelevant outrages like the draft, or by searching through history to find “where it all went wrong,” we fail to appreciate the complicated issues of Constitutional theory, and end up distorting our understanding of the past.

 

Whose False Idol?

 

            I’m intrigued by Sobran’s statement that for Lincoln, the union was like a “golden calf.” This could mean one of two things. According to Exodus, the golden calf was a false god, for which the Israelites clamored when they grew impatient for Moses’ return from Mt. Sinai. By kneeling to this idol, they betrayed their First Commandment duty to worship only the One True God. “Oh,” said Moses, “this people have sinned a great sin, and have made them gods of gold.”⁵¹ So Sobran could be saying that Lincoln venerated government while betraying his fidelity to higher principles. But it was the Confederates who knelt to the idol of state sovereignty, while betraying the principles of liberty and equality which, according to the Declaration, are the only legitimate basis of sovereignty—who sought to sacrifice the liberty and lives of millions, to preserve the autonomy of states—who chose to break up the nation, rather than face the prospect of working for their own bread, or acknowledging the humanity of black Americans. It was they who embraced the idolatry of state power, and renounced the only principles which can legitimize the state. As Lincoln said, it is strange that the name of a merciful God should be invoked on behalf of those who sought to earn their living through the sweat of other men’s faces.⁵² Surely the south worshipped a god of gold.⁵³

            But the second possible meaning, less noxious, could be that for Lincoln, the union, and the Declaration which he believed created it, was a sacred bond, very nearly holy in his eyes. That, of course, is true. He shared this veneration with James Madison, whose dying advice to his country was that “the Union of the States be cherished and perpetuated. Let the open enemy to it be regarded as a Pandora with her box opened; and the disguised one, as the Serpent creeping with his deadly wiles into paradise.”⁵⁴ And, of course, I share that veneration as well. I believe the Constitution of 1787 is the closest thing to a libertarian government that the world has ever seen, or is ever likely to see. I believe it entirely consistent with the Declaration of Independence. And I am infinitely saddened to see that many people, including many libertarians, believe the Constitution was a counterrevolutionary document which sold out the principles of the Revolution and inevitably tended toward the bloated, centralized government of today.⁵⁵ I will not try to defend the Constitution here—The Federalist did that far above my poor power to add or detract—but I do urge those who have adopted this view to reconsider. Early in his career, Frederick Douglass believed, like William Lloyd Garrison, that the Constitution, hopelessly infected with slavery, had foreclosed the Revolutionary dream of liberty and equality, and that the only solution was disunion. But, at the urging of other abolitionist friends, Douglass did some research on his own: reading the Philadelphia debates, the Federalist, the writings of Jefferson, Madison, Lysander Spooner, and others. He came to the conclusion that “the Constitution is a GLORIOUS LIBERTY DOCUMENT.”⁵⁶ Of course, the generations that followed Douglass came to betray that Constitution in many ways; as subsequent generations have also done. (Many of them have also bravely defended those principles, in university classrooms, in the halls of Congress, and on the beaches of Normandy.) As libertarians, we are the natural progeny of those who wrote, and who died for, the Constitution. That is a splendid legacy, which we ought not to lightly relinquish.