-Submitted by David Drumm (Nal), Guest Blogger
Jonathan Blanks, a research assistant at Cato Institute, has written an essay about the incoherent position of those libertarians who defend the Confederacy and claim that the Confederacy was within its rights to secede from the Union. Banks writes: “there is no legal or moral justification for supporting the Confederacy in the Civil War, it is impossible that there could be a libertarian one.”Slavery, as practiced in the Confederacy, would seem to be wholly inconsistent with libertarian principles. However, libertarianism is divided into economic libertarianism and personal libertarianism and these two views come into conflict regarding the Civil War.
In an ingenious observation, Jason Kuznicki noted that “Secession is the decision to step out of an existing political order, so it’s a category error to try to justify it legally.”
Some claim that the Confederacy represents a legitimate act of rebellion and point to the principles in the Declaration of Independence for support. But the Declaration of Independence places conditions on the right of the people to overthrow their government. “Prudence … will dictate that Governments long established should not be changed for light and transient Causes,” and the overthrow must come after “a long train of abuses and usurpations.” If the new government that is instituted violates individual rights instead of securing them, then the new government is not legitimate by Declaration of Independence standards.
Current justification of the rebellion via the Declaration of Independence would have been met with derision in 1861. John C. Calhoun, a leading politician and political theorist from South Carolina, denounced the principle of that all men are created equal saying it 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.”
The rationale for secession can be discerned by searching these four Declaration of Causes. Contrary to revisionist claims, economic policy factors (except as it applies to slavery) are nowhere mentioned. As Blanks states, “it is clear that the South’s actions—the catalyst for war—were explicitly motivated by freedom’s suppression.”
The “states’ rights” argument in also incoherent. As Clint Bolick puts it: “The very notion of states’ rights is oxymoronic. States don’t have rights, States have powers. People have rights. And the primary purpose of federalism is to protect those rights.”
H/T: Jonathan Blanks, Ilya Somin, Jonathan Blanks, Timothy Sandefur (pdf).
“As best I can recall, the only time folks clammer for state’s rights is when there is another group of folks the majority wants to abuse.”
Your recollection sucks.
“That may be a cheap shot, but still, nullification, aside by being used to defend runaway slaves and free speech, has been used to stop military conscription, tariffs and unlawful search and seizures. I would say those are civil rights-friendly policies. The nullification threats over conscription during the War of 1812 are very reminiscent of the civil disobedience over the military draft during the Vietnam War. And in both cases, they were effective. The federal government was unsuccessful in creating a draft for the War of 1812 and the draft was eventually abolished after furious protest and defiance in 1972.
Today, nullification is being used, in everything but name, on a whole host of matters from conservative issues such as gun rights, to liberal issues such as medical marijuana (California, effectively nullified the federal ban on it). Many states are considering challenging the porkfest of corporate welfare that is healthcare reform. The Real I.D. Act, which created a national ID card, was passed, but so many states have refused to implement it that the federal government has, at least for now, given up on it. There is quite a lot of nullification going on right now even as we debate whether or not it’s constitutional, racist or seditious.
Liberals, who are typically more likely to oppose federalism, should ask themselves whether or not nullification would allow states to defund the Iraq War, end the War on Drugs or eliminate the Patriot Act and the Military Commissions Act. The principle in and of itself can be used for good or bad, but centralized power tends to always be bad. As Tom Woods put it, “If you enter into a contract with somebody, never, ever would you say that the other party in the contract can exclusively interpret what it means… [when] the federal government has a monopoly on interpreting the Constitution… they’re going to interpret it in their own favor.” Given the horrific amount of damage a centralized government can do (according to R.J. Rummel, governments killed 262 million of their own citizens in the 20th century alone), I think it’s safe to say we need every tool available to ward off unchecked government power.”
http://www.swifteconomics.com/2010/07/08/nullification-and-civil-disobedience/
The separation of the British colonies from Britain was illegal by British law. It was considered treason. The signers were appealing to a ‘higher’ law than that of Britain. They certainly were stepping outside the British legal system, and making their own.
If you’re declaring yourself independent of the U.S. Constitution, by seceding, you’re in the same situation. You just stepped out of the legal system of the Constitution. That didn’t work in the Civil War. The governing authority (Federal Government) wasn’t across the ocean. It was right here. It’s hard to pull off an insurrection, in those circumstances.
I believe that there’s no allowance for secession in the Constitution. The purpose of the Constitution was to create one nation, not to provide a mechanism for its destruction. I don’t see, in the Federalist Papers, any attempt to persuade using the argument, “Well, if you don’t like it, you can always leave.”
It’s analogous to the contention that the Second Amendment allows weapons to be kept by the populace for the purpose of violently resisting the tyranny of the Federal Government. Some folks actually seem to believe that. Why would the Constitution provide a method for violently overthrowing the Federal Government?
The Constitution would provide neither a legal method for secession, nor a means for violently overthrowing the government. Those are illegal.
So, after all that, I’d say I agree with Jason Kuznicki, that attempting to legally justify secession is a category error.
Would we create a ‘more perfect union’ that could be ended so easily?
Even the Articles of Confederation were titled a Perpetual union. I hardly think that a more perfect union would entail dissolving that union. Simple.
The defense posited at the Nuremberg Trials in post war Germany was that the Third Reich was standing up for certain liberties—hat those liberties included the right of the state to kill off Six Million people was posited as a defense.
What is constitutionally applicable today is not the original intent of the original Framers of the Constitution and also the first ten amendments. We fought a big war to determine the next course in Constitutional law and the notiion of liberty which the next round of Framers proposed. The Framers of the 1860s debated and circulated proposed Amendments to the Constitution which were adopted into law by the States. The 13th, 14th and 15th Amendments were the product of these Radical Republicans who were true libertarians. It is cute to turn things on their head and say that the slave advocates were libertarian. As Curley on the Three Stooges said: “Hotsie Totsie, I smell a Nazi.”
Schmucks like Rick Perry, who still spew the States Rights mantra, are simply the godsons of Orval Faubus and George Wallace. They like to belly ache that States Rights are being abused when they lynch some fellow for allegedly winking at a White girl and the feds come in and investigate or perhaps even prosecute some Klan member. I think we can safely catagorize Faubus and George Wallace as Libertarians when we think of them as standing up for the rights of folks to talk about heritage and the liberty of the race haters to speak their piece. Yeah, that Confederate Flag is part of your heritage. Of course they do not want you to inspect their heritage too closely. Like great-great-grandpa who came over from Europe as a convict to serve time in the Georgia penal colony. Or that great grandpa who may have been from the mountains in North Carolina and fought for the Union because he did not have slaves and was not about to fight for some slave holder down on the coast. No, its tough to be a white guy out in the boonies in North Carolina and admit that the Heritage might be soiled by some of the choices made by North Carolinians in 1861. They were Southerners fighting for Liberty–for the Union.
Gosh what a tangle this is. Folks with big money fund such projects by the Cato Institute or the American Enterprise Institute and the tangled web gets ever more complicated so that the Southern Strategy can be advanced and dumb chumps will vote for some guy named Willard who calls himself Mitt and wears jeans so that yu will identify with him as one of you. This week Willard is down here eatin grits and saying Y’all to anyone in sight.
PastureNiemoller,
Said it all, supplemented by Oro Lee. The rebuttals to them are merely rhetorical obfuscations.
As far as I’m concerned, the Civil War amendments did away with state’s rights..
@Oro Lee,
How do you feel about
Same sex marriage?
Legalization of pot?
California paying for stem cell research?
If Roe were overturned, how would you feel about states rights then?
As pointed out above, the only state’s right at play before the War was the South’s ability to continue to enslave people.
As best I can recall, the only time folks clammer for state’s rights is when there is another group of folks the majority wants to abuse.
As far as I’m concerned, the Civil War amendments did away with state’s rights..
The only difference between most rebellions and revolutions is the winner.
Upon further reflection I need to hear a more detailed explanation from Kuznicki.
I need to read an explanation of the categories and who’s doing the justification. I don’t want to put my own assumptions on his statement.
Bron,
The civil war was started by the South for immoral reasons.The north held the Union together for moral reasons. The Feds did the right thing. The South ignored the law and the morality of true freedom.
Is the secession as outlined in the Declaration of Independence justified in our system? Would it be fought against as illegal? Category error? Or does it matter?
Because if it doesn’t matter, what is the importance of this argument?
Should be more like:
Because if separation as exemplified by the Declaration of Independence is illegal in our system, than fuck our system, it is trivially wrong.
If it can somehow be dismissed as Category Error, and thus seen to be illegal or improper, than fuck Category Error, it is trivially wrong.
If saying it is category error means it is justified, just out of scope of our system, then who cares about category error? What is the importance of the argument?
tl;dr: Any system that would judge the rights to separation claimed in the Declaration of Independence as out of order, improper, or illegal is trivially wrong.
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them,
Can this statement be “legally justified” or is it a “category error?”
If it cannot be legally justified, what does it say about our system?
If it can be dismissed as a category error, what does it say about category errors?
It goes without saying that no one here is for slavery or would want to have seen slavery continue past 1776 if not ended sooner, so ignoring that secession in 1863 was favored by slavery proponents, it does bother me that somehow there is no right of secession to the states (or the people.)
Frankly, I think a huge problem for democracy today is our 435 house does not scale to the populations we have and that imbalance goes and favors time and again corporation and lobbyists. And that the solution is a looser federation of states that are more able to represent the people and tune out the corporations and lobbyists. I think population has scaled ten fold since the civil war, but the size of the house has only scaled three fold.
I would love to split with California, Portland and Seattle and Hawaii from the rest of you momzers.
Is the secession as outlined in the Declaration of Independence justified in our system? Would it be fought against as illegal? Category error? Or does it matter?
Because if it doesn’t matter, what is the importance of this argument?
Ilya Somin:
Is Legal Secession a “Category Error”?
But I don’t think that legal secession is necessarily a “category error.”
I can’t speak for Kuznicki but I don’t think he’s talking about “legal” secession. I think he talking about seceding from a legal system and then using that same legal system to legally justify the secession.
“In an ingenious observation, Jason Kuznicki noted that “Secession is the decision to step out of an existing political order, so it’s a category error to try to justify it legally.””
What does this mean?
Is it well-defined?
I worry it is ill-defined, and the same argument could be used to deny “previously unrecognized but found or derived” rights like privacy rights.
Ekeyra,
Sometimes people from the south are a little s…..l……o….w…….haven’t ya heard it….
“slavery has been the economic engine of numerous great civilizations. slavery has also been the downfall of many of them.”
Slavery does not create wealth. It merely diverts the products of mens labor by force, to whichever end their master deems. It can create something, but what is produced with slave labor will always be of less value than what would have been created by allowing the slaves to pursue their own individual ends. Whether or not those ends held value to anyone but the person who created it, there would still be more prosperity because resources that would have been spent solely on the subjection of individuals would have been instead used by those same individuals to create something that was valued instead of something that employed coercion to produce.
In other words, slavery is always less efficient than freedom simply because you have to use time, effort, and manpower to stop people from doing what they were doing, and divert their labor to your endeavor.
Ay,
“But the EP only applied to the states in insurrection…. I maybe wrong….but…you never know…”
You are absolutely right. It was not only limited to slaves residing in states that had seceded, but there was a clause that would have allowed them to keep their slaves if they just played nice and came back to the union!
So who knows what would have happened if the confederacy had weighed its options and decided on that course of action. Considering that martin luther king was still fighting for civil rights a century later, I really dont see all the good the civil war supposedly provided for black people.
First you have to reconcile that the rioters in new york conducted themselves in the say way that union troops did. Destroying everything and everyone in their path.
Second you have to reconcile the hypocrisy of forcing someone to kill and die for something they did not want to. Not only that but there was a buy off provision of the draft that allowed wealthy citizens to purchase a substitute to take their place in the draft. Have fun with that one.
Third, reconcile that the USA was hardly the first or the last country to have to deal with the issue of slavery. We were however the only one that slaughtered half a million people to do so.
“If the alternative is to keep all just men in prison, or give up war and slavery, the State will not hesitate which to choose. If a thousand men were not to pay their tax bills this year, that would not be a violent and bloody measure, as it would be to pay them, and enable the State to commit violence and shed innocent blood. This is, in fact, the definition of a peaceable revolution, if any such is possible. If the tax-gatherer, or any other public officer, asks me, as one has done, “But what shall I do?” my answer is, “If you really wish to do anything, resign your office.” When the subject has refused allegiance, and the officer has resigned from office, then the revolution is accomplished.”
– Henry david theoreau
slavery has been the economic engine of numerous great civilizations. slavery has also been the downfall of many of them.
Ekerya,
If I recall there is still an east coast state that has not banned slave owning…. Not that they need to now….
But the EP only applied to the states in insurrection…. I maybe wrong….but…you never know…