The Civil War was Illegal

I started a fight on the NRO Facebook group by claiming Lincoln was the worst president in US history and I’m only partly joking about this. But before I get into this mess I first need to qualify my opinions:

A) I have great affection for Lincoln the man. He has been so mythologized in the American imagination that it is virtually impossible to not love him. He had a particular kind of genius. That does not by definition make him a great or even good president. The executive branch is supposed to uphold the constitution and execute the law, I think Lincoln ultimately destroyed the Constitution and thereby broke his oath by fighting an illegal war. A war that was catastrophic and completely unnecessary.

B) I am not defending the racist or brutal aspects of slavery by criticizing Lincoln or the Civil War. Much more could be said on this but it’s simply fallacious to equate these things. The Vietnam War was also an illegal disaster but claiming such a thing does not make me pro Communist or anti US. Wars rarely have good outcomes. The CW led to Jim Crow, a less desirable outcome is hard to imagine. 

C) I would not have been a secessionist in the 1860s because I’m a Conservative. Radical solutions rarely if ever succeed and secession ultimately led to the destruction of the Southern tradition and the American political tradition generally. It gave space for a culturally impoverished liberalism to take hold of America that had more to do with the French Revolution than the American. This has led to all sorts of awful tendencies in US public policy. Nothing good came from any of it. It was all a mistake. I deny the supposed right (or worse duty) of Revolution talked about by thinkers like Locke. 

I try to spend as little time on social media as possible so this blog post is a response to one comment that is highly relevant for this discussion. I asked one of the people on the group to provide a legal justification of the Civil War (because this is a trap, there is no legal justification for the War) and this was his response: 

This is exactly what I thought he would say. This is exactly what Daniel Day Lewis argued in Spielberg’s Lincoln. This is typical, predictable, and false. Like I said: it's a trap. If you want to defend Lincoln it has to be on moral or political grounds, he can't be defended legally. More realistic people, like Jonah Goldberg, basically admit that they think what he did was right but that he had to do horrible things to do it. And I think he did the wrong thing for the wrong reasons in the wrong way way and got almost a million Americans killed because of it. I think he was a truly horrible president. But none of that would've happened without secession. It's just a huge multi sided disaster. In any case the "legal" case provided is pretty easy to destroy so I'll go through the three meager points provided one at a time. 

I) “A region of the nation was in rebellion.”

This is assuming many things but the two most important are 1) That these United States were a Nation and 2) that secession is an act of Rebellion. Both of these assumptions were false (I think they’re still legally false but time, tradition, and convention have mostly made it irrelevant) when Lincoln used them to justify the War. The legal authority to act against Rebellion is not granted to the Nation of America, since no such entity exists. That authority is granted to the central government that was formed by a compact of The States. In other words statement I) is essentially nonsensical because it doesn’t refer to anything. Secession from a compact government by Sovereign states is not an act of insurrection. The Central government was not overthrown by secession the States simply left. This is similar to saying that Brexit is an act of rebellion or insurrection against the EU. Obviously there are massive discontinuities between the two movements but the fundamental principle of National Sovereignty is at play in both. The constitution was created to guard the sovereignty of the States by granting very few powers to the Central Government. 

The retort to this historical truism is that after the States Seceded they attacked the US at Fort Sumter so in fact it was an armed insurrection. This is true and false. It was clearly a mistake on the part of the South to attack first because Lincoln didn’t declare war until the South attacked. But this makes it obvious why Lincoln had no grounds to do what he did according to his own reasoning. The legal game being played here is that without the States of the United States there simply is no United States. The Central government governs the Union, and the Union is the States themselves. In other words as soon as some of these Sovereign  States got out the Union simply ceased to exist which meant that whatever happened next would be a struggle between two different groups of Sovereign states. So they couldn’t recognize the fact of Southern Cessation if Lincoln wanted to make the insurrection argument, but making War on the States is clearly treason so Lincoln had to argue the fiction that these States were still in the Union but had Rebels within them that were trying to overthrow their government...in other words this whole conversation is legally a kind of nonsense. 

The Civil War was a political war not a legal one. War is politics by other means. Lincoln used War Powers without Congress declaring a War, but War Powers don’t apply to insurrection. It’s also telling that the first part of the original insurrection act states “Suppress an insurrection against a State government at the request of the Legislature or, if not in session, the Governor.” In other words Lincoln needed the permission of the States where the “Rebellion” was taking place to put down those Rebellions. But those Rebellions weren’t taking place against those States because they weren't anti state Rebellions. Secession wasn't unilaterally imposed on the South. The various states held public conventions and voted to leave, in other words they left democratically. Lincoln imposed his will by force on a democratic movement of secession. That is tyranny, there is simply no other name for it. The justification for such tyranny must be moral or political, it can never be legal under the Constitution.

The truth is that my interlocutor is simply assuming the Constitutionality of the pledge of allegiance, which is at best a silly or unserious thing to base our political opinions on. Brion McClanahan writes: 

“The modern pledge was written by Francis Bellamy, a socialist minister who wanted to indoctrinate American schoolchildren with a nationalist message, one based on the “great speeches” of Daniel Webster and Abraham Lincoln in relation to the “One Nation which the Civil War was fought to prove.” Sprinkle in some “liberty and justice” from the French Revolution and you have a message that any good leftist nationalist can embrace. The founding generation would not have said such a pledge, if for no other reason that most did not view the United States as a “nation” in the strict sense of the word, a single people.” 

McClanahan is one of our greatest living defenders of the American political tradition and his case for the legality of secession is truly devastating. He doesn't argue this, as far as I'm aware, but if you should be pledging allegiance to anything it should be your state or local government of some sort. That idea pains me greatly as a citizen of Calipornia... but the Conservative position has always been to think locally and act locally. We must be members of what Ben Sasse calls good tribes, and out of good tribes we can have good states and out of good states a good union. 

II) “There is no constitutional provision made for a State leaving the Union.”

This is true but that means it’s easily settled by the 10th Amendment:

“The 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.”

No provision means no provision, which means it’s also not prohibited, which means that secession is up to the states. For the claim that no provision means no legal ability to secede to make any sense one has to assume, as Lincoln and many others have, the compact that formed the Union is literally eternal and indissoluble, making it similar to God’s covenant with Abraham. There is no reason to believe such nonsense because when the South Seceded they did in fact dissolve the Union. Madison clearly recognized that there was nothing magical about the compact, in fact Jefferson assumed that there would be a revolution of government every twenty years or so. The belief that the union is a magical contract is very silly and a kind of reification (or worse deification) of “America”.

III) “Lincoln was upholding his oath of office.”

The oath is

“I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

If we are to understand Constitution here in the classical sense, which referred to the character of a nation and not its laws, then this could be read as an argument for the Preservation of the Union. But that’s not what it means.

Aside from that the only possible way to see him as upholding his oath is that since the Constitution doesn’t apply without the United States the war was a way of keeping the Constitution a reality. But it’s obvious that Lincoln violated the Constitution in all kinds of ways. He ruled with Martial Law which meant that he violated all kinds of Civil rights. He suspended Habeas Corpus and violated freedom of speech. He fought an undeclared War either against the states (treason) or within them without their permission (illegal). No matter how one looks at this Lincoln simply did not uphold his oath of office. Few presidents have. It’s a hard oath to keep. But Lincoln was one of its worst violators. I’m sure he believed he was doing the right thing, and maybe he was, but he wasn’t doing the legal thing. Maybe it’s right to break your oath...

And that’s all my interlocutor argued. Three false assertions easily knocked down.

The sad truth is that the Civil War was a horrible event in US History, probably the most horrible. Nothing positive can be said about it. Especially not the abolition of Slavery because Slavery was replaced with Jim Crow. For a fuller understanding of why the Civil War was such a disaster see this episode of Al Mohler’s Thinking in Public. 

The truth is that this is not an intra Conservative debate but rather an inter debate between different ideas of Conservatism. I am arguing for the correct Conservative position on the Civil War and my interlocutors are arguing for the Harry Jaffa interpretation of US history. Jaffa was not a true Conservative. The very well respected scholar Paul Gottfried has been arguing this for decades:

“Indeed, when such journalists as Rich Lowry casually observe that Jaffa may have been the key thinker for their movement, and when they rate his book on Lincoln as the single most significant book in molding their ideas, the compliments are fully justified. All other contemporary thinkers pale into insignificance beside Jaffa, thanks to his exposition of equality as the prime “conservative principle.” More than forty years ago I stood with Russell Kirk in front of his library as he showed me an anthology on conservative voices (put out by William F. Buckley, Jr.) which included Jaffa. “This man shouldn’t be here,” remarked Kirk with obvious irritation. In point of fact, neither Russell Kirk nor I would belong to the future of a movement that became closely identified with Jaffa’s thinking and which, by the 1970s, had come to reshape the thinking of the founder of the National Review.”

Jaffa's influence fully explains the Lincoln cult that pervades what we call modern American Conservatism. The NeoCons simply aren’t Conservative, they’re battling over control of a modern American progressive consensus, one that is based in the ideals of the French Revolution. The Civil War was identified in many ways historically with the third French Revolution. The NeoCons belong to this political tradition. It is not hard to find evidence of this. After all AEI came out in support of Transgenderism last year.

That’s the real reason I picked this fight. 

Because it matters. 

Conservatism matters. 

Lionizing the Civil War and hagiography of Lincoln are deeply anti Conservative. 

Think locally and act locally. Love the little platoon that God in his providential grace has brought you to.