As a “conservative” — and, moreover, one who leans toward the libertarian version of “conservatism” — I sometimes find myself in conversation with other libertarian-minded people who identify the Civil War as the point in American history at which the original Federalism began to jump the rails, at which the Federal government first began its evisceration of the notion that a limited Federal government had, and should have, no jurisdiction over certain activities that were and are the purview and prerogative of the individual States. In their telling of the history of that war, it was less about slavery than about the southern States’ assertion of their rights to be free of Federal restraint. And, as a result, although they genuinely celebrate the immediate outcome of that conflict — the abolition of slavery — they also lament the resulting victory of Federal authority over “states’ rights.”
Despite the belief of a great many people that such notions must grow from an underlying base of belief in white supremacy and white nationalism — and despite the fact that there are, in fact, white supremacists and white nationalists who subscribe to and promote that narrative — I generally ascribe it, among the libertarian idealists, more to an honest, if misguided, lack of historical perspective coupled to a contemporary and compelling anxiety. Chattel slavery was, after all, abolished in the United States more than 150 years ago, in law by the Emancipation Proclamation (and again, more formally, by the 13th Amendment to the Constitution) and then in practice by the surrender of the Confederacy. Jim Crow laws were abolished by the Civil Rights Act of 1964, more than 50 years ago, and well over 2/3 of Americans now alive were not yet born when those laws fell. To a great many people — admittedly, people fortunate enough to be free of the ongoing yoke of discrimination in culture rather than in law — both slavery and Jim Crow feel like relics from a long-ago past, a problem already solved and well behind us. Whereas, the constraining yoke of an increasingly overweening and intrusive Federal government feels like a problem both modern and growing, a problem for today with direct and observable effects on their lives and on their futures.
Nonetheless, their sincerity does not make them right. This, then is directed to their attention and for their benefit, from one libertarian-minded conservative to another:
1) The states of the Confederacy did, without a doubt, secede from the United States specifically because they wanted to preserve the institution of slavery. That was their purpose, and they were quite explicit and specific in stating it. See, for example, what Colonel Ty Seidule, Professor of History at the United States Military Academy at West Point, has to say on the subject. In that regard, people who say that the Civil War was “about slavery” are wholly correct — that was the prime mover. Anyone who denies that the Civil War was “about slavery”, or even that it was “primarily about slavery”, is either mistaken, deluded, or indulging in self-justifying obfuscation.
2) The reason the Confederate states felt they needed to secede from the United States over the issue of slavery, rather than take some other course, was, indeed, because the Federal government was actively expanding its conception of what the enumerated powers allowed it to do — to such a degree that the southern states felt it to be inevitable that the Federal government would, eventually, assert its authority to outlaw slavery throughout the entire country. All the historical background regarding the struggle over whether or not new states would enter the union as “free” or slave-holding states, and over things like how runaway slaves were to be treated, ultimately came down to a power struggle over the use of that expanded Federal authority. That is, the South feared (undoubtedly correctly) that, once the “free” states gained a clear voting majority in Congress and a clear enough popular majority to determine who exercised the powers of the Presidency, they would use that majority to assert a Federal authority to ban slavery.
Hence, it is true that the issue of “states’ rights” was an element of the decision to secede: the states forming the Confederacy did, in fact, justify their need for secession by asserting “states’ rights” — specifically, the “right” of each state to set its own policy on slavery. If the Federal government had not been threatening to assert an authority to override that specific “right”, secession would have been unnecessary.
But “states’ rights” was a subsidiary element within the larger frame, not a primal one. It is unlikely the states of the Confederacy would have gone to such extremes — or felt that they needed to — if the “right” they were defending was something more abstract and less consequential. The fact was, they feared that the Federal government would soon assert that they had no specific right, as states, to maintain the institution of slavery; and they were asserting that they did, indeed, have that specific right. But they made that assertion not primarily in defense of the principle of “states’ rights” but primarily in defense of the institution of slavery, itself. That is, “states’ rights” was the weapon they wielded, but slavery was the cause that weapon was deployed to defend.
It is one of the truly unfortunate accidents of history (or, perhaps, not so much an accident as an inevitability) that the first and most profound test of the limits of Federal power, and of the viability of “states’ rights” as a doctrine, was bound up with the specific claim that states had a “right” to allow slavery. To be blunt, the Confederate States used the argument of “states’ rights” to assert a right to something that was morally reprehensible on its face, something that was, to most people even at the time, the absolute opposite of a genuine “right”. What they were asserting was a “states’ right” to act in a tyrannical fashion by usurping the rights of specific individuals within the State. They were claiming “states’ rights”, but what they were actually defending was, to most people, a state-sanctioned wrong.
That could not but tarnish the very notion of “states rights”. Even now, 150 years later, the term “states rights” evokes, in many people’s minds, the notion of a “state’s right to allow slavery” or, more generally to treat certain people, former slaves and their descendants, as something less than human. As my then 17-year-old son once pointed out to me, political and social movements are nearly always branded by their most obnoxious and vehement adherents. Think “FemiNazis”. Alas, the same is true of “states’ rights”. The most obnoxious and vehement supporters of “states rights” throughout American history were defending the right to keep slaves and, later, if not to keep slaves, then to suppress the civil rights of freed slaves and their descendants. Anyone who wants to defend “states’ rights” in any other context bears the burden of overcoming that malicious historical association. Fair? Perhaps not. Accurate? Not entirely. But that is the perceptual reality. And people who perceive that reality have very good reason for their suspicion and their hostility.
3) Along with “states’ rights”, there is a more fundamental principle that was demolished by the outcome of the American Civil War and has been, alas, similarly tarnished by its association with the cause of slavery: the right of “the people” — through the agent of their state governments — to withdraw their consent to be governed when it has been once granted.
The Declaration of Independence asserts that governments attain their authority by “…deriving their just powers from the consent of the governed;” that is, it asserts that no government can have authority over people who have refused their consent to be subject to its jurisdiction.
It is clear from the context, and for wholly practical reasons, that the Founding Fathers did not — and could not — mean that to apply on an individual basis. No society, and no government, can exist if individual citizens get to pick and choose whether or not to “consent” to governance in any given instance. The “sovereign citizen” movement has that wrong. On an individual basis, it means, in effect, “if you don’t choose to consent to the authority of a properly-established governing agent, then leave its jurisdiction and find (or create) some other jurisdiction more to your liking.” That is, in part, why “states’ rights” — and, for that matter, “local rights” — is such a big deal: it is the mechanism that provides other jurisdictions to which you may escape.
But the principle of “consent” does mean a general ideal of a right of “self-determination” for suitably large, well-formed and identifiable geographic and/or cultural subsets of the population — for “a people”, as opposed to an individual person.
The “United States” of America is exactly that — a country created by uniting independent States — and the process by which it was created was not a plebiscite — not a vote of the entire people — but a solicitation for agreement of each individual State, as a political unit, to consent to the arrangement. That is, the “consent of the governed” to defer to the authority of the Federal government was formalized by the consent of each individual State to the formation of the “union of States”.
What the Confederacy decreed was simple: “We withdraw our consent.” That was it. They justified doing so as a response to an asserted failure of the Federal government to honor the “states’ rights” guaranteed by the Constitution which governed the Union; and what they wanted the right to do was to continue the abomination of chattel slavery, which other states opposed for good and compelling reasons. But, regardless of what they wanted from the act or why they felt it was necessary, fundamentally what they did, in “seceding” from the union, was to declare that they no longer agreed to be governed by it, that they no longer “consented” to its governance. They declared, independent either of “states’ rights” or of slavery, that they had a right to self-determination and that they were choosing to exercise it.
It is my firm belief that the world, overall, is a better place as a consequence of the refusal of the Federal government to accept that declaration. At the least, the ancient abomination of chattel slavery was eliminated from North America and nearly four million people who ought to have been acknowleded from the start as American citizens — and, more importantly, as human beings with all the rights and responsibilities that come with that — were formally granted that status. At the most, when the modern abominations of Marxism and Naziism came along in the 20th century, a united United States was in a much better and stronger position to defeat them than a divided United States/Confederacy would have been (not to mention that a Confederacy, allowed to continue on the cultural and political path it had favored, might have more preferred to side with the Nazis than against them). And I believe Americans, North and South, are both economically and culturally better off by being united than they would have been by being separate.
Nonetheless, that refusal to accept the withdrawal of consent to governance was, itself, a blow to the basic principle of self-determination. By what moral principle was it the right of the American government — or of any government — to declare that those who have once granted consent to be governed may never, thereafter, withdraw that consent?
Again, it is an unfortunate accident (or inevitability) of history that the principle of self-determination — of the right to withdraw consent to be governed, the same right asserted to justify the very founding of the United States — was bound indivisibly to slavery by the perfidy of the Confederacy and, thereby, doomed to perish alongside it in the conflagration. We may be better off in the long run for having allowed it to perish at that particular time and in that particular circumstance, but that does not mean we have not lost something by its demise.
4) It may be true that, in the minds of some (or many) modern southerners, tributes like statuary and flags that honor either prominent figures of the Confederacy or the Confederacy, itself, are more about celebrating the stalwart resistance to “being told what to do” than they are about what it was they were being told to do — that is, it may be that they are perceived more as symbols of self-determination than they are as symbols of slavery or of Jim Crow racial policies. But we have to acknowledge that is not how they were intended at the time they were erected; and we have to acknowledge that the way those issues were bound together by our history makes it impossible to separate them. Where some see symbols of the dignity in self-determination, others see symbols of the indignity of a denial of self-determination — because both elements are there. It is not reasonable to declare, merely because some other people see it differently, that those who see a glorification of slavery and Jim Crow in those symbols are wrong. Slavery was, indeed, what those heroes defended; slavery was, indeed, the reason for the very existence of the Confederacy; and an intent to protest and resist the ending of slavery, in the form of the institutionalized and state-sanctioned discrimination embodied in Jim Crow, was what those statues and flags were intended to convey by those who made them a prominent feature of the public square.
If what you want is to celebrate self-determination, find new heroes and forge new symbols untainted by that history. Elsewise, you will only succeed in driving people away from that celebration and away from the cause you mean to honor.
© Copyright 2017, Augustus P. Lowell