Reply to Timothy Sandefur on Civil War and All That

Part I. Jefferson.

Contra Timothy, decentralization is a pivotal Jeffersonian principle, particularly, "the support of the State governments in all their rights, as the most competent administrators for our domestic concerns and the surest bulwarks against antirepublican tendencies."

Jefferson supported free market and free trade, as Lincoln did not: "Having always observed that public works are much less advantageously managed than the same are by private hands, I have thought it better for the public to go to market for whatever it wants which is to be found there; for there competition brings it down to the minimum of value." (Letter to William B. Bibb, July 28, 1808) In A Summary View of the Rights of British America Jefferson complains that "the exercise of a free trade with all parts of the world, possessed by the American colonists, as of natural right, and which no law of their own had takes away or abridged, was next the object of unjust encroachment" by the British government (Thomas Jefferson: Writings, 108). He protests against the duties on the American articles of export and import, prohibitions against trade with certain countries, protectionism of all sorts (e.g., "By an act passed in the 5th Year of the reign of his late majesty king George the second, an American subject is forbidden to make a hat for himself of the fur which he has taken perhaps on his own soil; an instance of despotism to which no parallel can be produced in the most arbitrary ages of British history." (109)), and arbitrary privileges granted to certain businesses. Lincoln's war, on the other hand, was practically all about protection and tariffs.

It's true that Jefferson wrote that "When any one State in the American Union refuses obedience to the Confederation by which they have bound themselves, the rest have a natural right to compel them to obedience." But, of course, Jefferson meant: either abide by the terms of the Articles of Confederation or secede! You either do as agreed or go your separate way. It is a complete failure to grasp Jefferson's entire political worldview to interpret him as a proto-Lincoln. Furthermore, Timothy fails to quote the rest of the very same letter he uses: "It has been said, too, that our governments, both federal and particular; want energy; that it is difficult to restrain both individuals and States from committing wrong. This is true; and it is an inconvenience. On the other hand, that energy which absolute governments derive from an armed force, which is the effect of the bayonet constantly held at the breast of every citizen, and which resembles very much the stillness of the grave, must be admitted also to have its inconveniences. We weigh the two together; and like best to submit to the former. Compare the number of wrongs committed with impunity by citizens among us with those committed by the sovereign in other countries, and the last will be found most numerous, most oppressive on the mind, and most degrading of the dignity of man." He might've been writing about the War Between the States which helped to create a unitary state, "one and indivisible," by blood and iron and which helped to usher in the 20th century, during which governments killed almost two hundred million people.

Part II. States' Rights.

Now Timothy quotes Rufus King to the effect that states "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 defense 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." But the point is not whether a state within the Confederation could devise its own foreign policy. Perhaps it couldn't. Perhaps it was a good thing that it couldn't. The point, rather, is (1) whether before joining the Confederation a territory could have chosen to become a sovereign state, and (2) whether after joining the Confederation a state could secede from said Confederation and become a separate nation. Furthermore, even given that states "divested themselves of essential portions of" sovereignty, they did so voluntarily and could regain their sovereignty at the simple will of the legislature.

Yes, the states seceded from Great Britain together and all at once. But that scarcely indicated that the union was proclaimed and forever established by the Declaration of Independence. It is profoundly obvious that that was a temporary military alliance, not a permanent political one.

In a act that could only suggest Timothy is living in a Bizarro World he inverts the Misesian analysis of revolution and secession, claiming that the former is legitimate, and the latter is not. At the same time even if the War Between the States was (in principle) an act of revolution, it was (in fact) illegal, because the South "initiated force rather than act in defense of individual rights." Now it seems to me that an example of a revolution would be an attempt by the South to extend slavery to Northern states by force of arms or majority in the Congress. But it did no such thing. Timothy's definition of "revolution" is highly unorthodox, because this term usually means "an overthrow of the central government," whereas, of course, the Southern secession left the central government quite intact, even if in control of a smaller territory.

Of course, the actual secession occurred because of economic exploitation of the South by the North, not because the North was insisting that the South free the slaves. So, who initiated force first? Now Timothy argues that it is unlibertarian to "defend the right of collectives to enslave their citizens and initiate force against others so as to keep doing so." For him everything revolves around slavery. To rid the world of it was allegedly Lincoln's crusade or, at least, it was abolished through him. The march of History culminated at the time in this Great Man. End of discussion. I've already mentioned the key assumptions behind such piety: (i) Only consequences matter; (ii) the evil means were justified/outweighed by the good end; and (iii) no peaceful solution was in sight. I would content with all three of them. Would Timothy? Anyway, would he also have the US today "invade the world"? Come on, my good sir, you can't seriously agree to have massive wars to punish bribe-taking officials wherever they may hide!

"The federal unit was an agreement between the people, not the states," a proposition endorsed by both the "weak-" and "strong-union" doctrines, Timothy writes. Therefore, "the people of America are bound together as one people for certain purposes, and therefore a state may not unilaterally secede." I wouldn't press this argument in any court of law. For now we can ask: Can an individual secede or emigrate? (If he secedes, his property becomes a separate nation. But so what? A country need not be continuous. Timothy must by his own logic accept such an act as legitimate.) Mises advocated an unrestricted right to secession, stopping short only at individual secession for "technical reasons." Would our author agree with Mises on this? But if an individual can secede, then, surely, so can a group of individuals, even a group which -- an odd happenstance -- makes up a state. It does not follow that if a state may secede, then an individual may. But the reverse implication is completely sound.

III. The Federalists and Anti-Federalists.

Now let's do some comparing and contrasting. According to Jay,

...even if the governing party in a State should be disposed to resist such temptations, yet as such temptations may, and commonly do, result from circumstances peculiar to the State, and may affect a great number of the inhabitants, the governing party may not always be able, if willing, to prevent the injustice meditated, or to punish the aggressors. But the national government, not being affected by those local circumstances, will neither be induced to commit the wrong themselves, nor want power or inclination to prevent or punish its commission by others. (F #3)

The idea is clearly that the national government will be far less subject to passions that normally animate state politics. The fear is that without a federal government the States will "be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all" (F #7). The anti-federalists argue that, on the contrary, because of the diversity of the country, the national legislature "composed of interests opposite and dissimilar in their nature, will in its exercise, emphatically be like a house divided against itself. ... In large republics, the public good is sacrificed to a thousand views... Where, from the vast extent of your territory, and the complication of interests, the science of government will become intricate and perplexed, and too mysterious for you to understand and observe; and by which you are to be conducted into a monarchy, either limited or despotic" (AF #14). Again, the federalist argument here is that the federal government is not like state governments in that it is far more rational. Surely, on that level everyone will be naturally concerned with the common good, while if the States are left unsupervised, their self-interest will be a cause of all sorts of evils, including internecine feuds. The anti-federalists reply that this is a delusion, because the federal government will not be any freer than State governments from the sway of passions and self-interest. In other words, the federalist argument does not work. Perhaps the danger that absent the feds, the states will war with each other, will exist, but so will the danger of "legal" exploitation of one state or group of states by another under the federalist system, as, indeed, undoubtedly was the case prior to the War Between the States.

The federalists make the point that "the causes of hostility among nations are innumerable," and the union will be able to check many of them. One anti-federalist counter-argument they consider is that "Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord." (F #6) There is something to be said for this view; e.g., as Ludwig con Mises writes: "Wars, foreign and domestic (revolutions, civil wars), are more likely to be avoided the closer the division of labor binds men." (A Critique of Interventionism, 115) The federalists' reply that wars often have an economic motive, for while in the free market system there prevails a long-term harmony of interests, in the short run a country may find the advantages of theft preferable to honest toil. Hamilton writes that "NEIGHBORING NATIONS... are naturally enemies of each other unless their common weakness forces them to league in a CONFEDERATE REPUBLIC, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors." Still, he does not seem to realize that if the entire US is a commercial republic, then the same arguments apply to it in relations with other states as well. What becomes of these arguments today when any nation in any part of the world is within easy reach of the US troops? And is there no hope for peaceful cooperation between states not arranged in a formal union? The reductio of this view seems to be a world government. Suppose that the US, Canada, and Mexico were one country, and Canada wanted to secede. Imagine the storm and the arguments in every paper fearful of an inevitable war. The federalist arguments have no greater merit than our imagined argument against the secession of Canada.

The case against the Constitution based on the consequence of the diminution of the powers of the member states is made as follows:

This [new] government is to possess absolute and uncontrollable powers, legislative, executive and judicial, with respect to every object to which it extends. ...a little attention to the powers vested in the general government, will convince every candid man, that if it is capable of being executed, all that is reserved for the individual States must very soon be annihilated, except so far as they are barely necessary to the organization of the general government. ...it is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over everything that stands in their way. This disposition, which is implanted in human nature, will operate in the Federal legislature to lessen and ultimately to subvert the State authority, and having such advantages, will most certainly succeed. (AF #17)

This is obviously very polemical, but hasn't this prediction come true? Is not secession an impossibility now? Does not national politics overshadow state and local politics? Does not the federal government extort or blackmail the states into doing its bidding by withholding funding? Has there not been a proliferation of federal laws overriding state laws? Are not state and local taxes trivial compared to federal taxes? And, foreshadowing the modern regulation state:

From this contrast it appears that the general government, will arrogate to itself the right of interfering in the most minute objects of internal police, and the most trifling domestic concerns of every state, by possessing a power of passing laws "to provide for the general welfare of the United States," which may affect life, liberty and property in every modification they may think expedient, unchecked by cautionary reservations, and unrestrained by a declaration of any of those rights which the wisdom and prudence of America in the year 1776 held ought to be at all events protected from violation. (AF #45)

The federalists counter that "The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power." (F #9) Including, I want to assert, the power to secede. However, "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. ... The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option." (F #15) This raises a problem: a breach of a federal law by a state would require a military intervention to compel obedience and hence a war between the state and the federal government. "Even in those confederacies which have been composed of members smaller than many of our counties, the principle of legislation for sovereign States, supported by military coercion, has never been found effectual." (F #16) In short, "The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting VIOLENCE in place of LAW, or the destructive COERCION of the SWORD in place of the mild and salutary COERCION of the MAGISTRACY." (F #20)

This, of course, begs the question. The problem apparently is that while the federal government can overpower any individual, it may not be able to overpower a state just as easily. Exactly! And all to the good, because why should the feds be able easily to do whatever they please over such an enormous territory? The federal government protects the states from each other, while the states act as protectors of the citizens against the federal government. It's the whole purpose of states. Absent genuine rights of states, the "laboratories of democracy" will be non-functioning. The same "one size fits all" laws will be imposed everywhere. Recall that most of the federalist arguments I have presented above appealed only to the need for collective security. Yes, the federal government is useful for that. And instead of empowering the feds to "regulate commerce" ("regulate" should always have been interpreted as "make regular, promote" not "interfere with commerce however we feel like"), the Constitution could have been much more clear in its intent that the federal government enforce free trade among the states by striking down any internal trade barriers. But that's about all. So, there is a difference between the feds' being able quickly to raise an army to pacify an aggressive state which has attacked or blockaded or is about to attack another and federal laws' being "mere recommendations which the States observe or disregard at their option," according to the doctrine of nullification. This is because no state can nullify its pledge to be at peace with everyone (that is, its foreign policy), but in making domestic policy it is fully sovereign or should be, as per the 10th Amendment. Yet look at our federal Leviathan now, grown so fat that Jefferson would not have recognized it, due in part precisely to the War Between the States.

IV. Conclusion.

There was a right to secede, and in seceding the South was Constitutionally and even morally clean. And as a general rule, no country has the right to declare war on another to correct any internal abuses by that other country's government.

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