Liberty, Prudence, Imperfection, and Law

The Importance of Being Earnest: Candor About Ideological Violations of Law and Humanity


Over at Law and Liberty, Mackubin Thomas Owens reviews a new book by James Oakes, Freedom National: The Destruction of Slavery in the United States, 1861-1865. The burden of Owens’s essay (and apparently of the book as well) is that Abraham Lincoln was too, ever and always, fixed on overthrowing slavery. Even when Lincoln seemed slow or distracted, many in his party showed genuine zeal for that cause. (It spoils the story if Lincoln was ever fixated, in a singular sort of way, on saving the union, however glorious that cause may be, considered by itself.) It follows that Southern political leaders were right to suspect something: a something that led them to resort to secession. On the other hand, and despite their correct assessment of the situation, Southerners had no right to anything about it, since they were, after all, completely in the wrong according to that famous legal treatise, the Declaration of Independence. Why we had a constitution at all, becomes a bit of a mystery.

But let us consult an actual participant. Having discussed at some length the Lincoln government’s bad legal practices in the North and the South, Jefferson Davis wrote: “if the necessity which they pleaded was an argument to justify their violations of all the provisions of the Constitution, the existence of that necessity on their part was a sufficient argument to justify our withdrawal from union with them.” (Rise and Fall of the Confederate Government, II, 1958 [1881], 182.) Thus Owens, Oakes, and Davis agree that Southern suspicions were warranted, but only one of them finds anything anomalous in the union-savers’ argument.

The chilling fatalism in that argument brings to mind a possibly parallel case. Professor Owens believes of course that the Old South had to go: full stop. To advertise Northern good faith and Southern perfidy, he suggests that Southerners really ought to have let Mr. Lincoln’s party destroy their society piecemeal, over a couple of decades, by means of presidential and Congressional legal encroachment to enforce the Declaration. In the end, he seems just as happy that his goal was accomplished through four years of brutal and catastrophic war. On such premises, then, it might have been quicker (and quicker is generally better in the American lexicon) to destroy the Soviet Union with science-based warfare sometime in the 1960s. Every minute of delay, after all, meant another minute of Soviet “slavery.” Barry Goldwater may have given a nod toward this position when saying during “an ABC-TV ‘Issues and Answers’ program that ‘defoliation of the forests by low-yield atomic weapons could well be done’ to expose the supply routes for the flow of arms from North Vietnam to the Viet Cong guerrillas in South Vietnam.” Coincidentally, Goldwater is also well remembered for his zealous utterance: “‘extremism in the defense of liberty is no vice and . . . moderation in the pursuit of justice is no virtue’,” which was actually developed by his speechwriter, Professor Harry Jaffa, the dean of the Lincoln hagiographers. Indeed, Jaffa himself is known for his 1963 remark that America had the “ability to destroy sixty, eighty, or one hundred million of a possible enemy’s population with a single stroke” (“The Case for a Stronger National Government,” in R. A. Goldwin, ed., A Nation of States, 1963, 110).

Such statements were not entirely shocking among (and coming from) Cold War conservatives, for they had already re-tooled Just War Theory to show its compatibility with nuclear “weapons.” After all, a serious moral difference existed during the Cold War, which made it easy to deduce that the other side had no rights whatsoever. With correct moral assumptions in place, no other interest, divine or human, need intervene.  “Defense” resting on the expected (and therefore intended) possible deaths of eighty or so million human beings was thus a thoroughly routine and rational response. It is sad, I suppose, that we avoided this “trampling-out-the-vintage” solution where the Soviets were concerned. It took the “Glory! Glory! Hallelujah” right out of the thing.

Given the gravity of this topic, I will put aside my above sarcasm to leave readers with a serious point of reflection. Conservative Presbyterian theologian, Philip J. Lee, once responded to the zealous Cold Warrior thinking reflected in the above comments and intimations by notable Conservative Movement figures: “[O]nly those who have come to accept a gnostic view of the world could even entertain the notion of defending anything by annihilating everything…. the balance of terror itself is the result of a heresy, a circular heresy, with no respect for the past, no hope for the future and no real God at the center of its present” (Against the Protestant Gnostics, 1987, 191).

8 Responses to “The Importance of Being Earnest: Candor About Ideological Violations of Law and Humanity”

  1. Marvin Edwards

    >>”Why we had a constitution at all, becomes a bit of a mystery.”<<
    The Declaration of Independence cleared up the mystery when it said, "to secure these rights, governments are instituted". The whole point of the revolution was to form our own nation and be self-governing. Really, am I the only one who actually read it?

    Jefferson Davis had no legal or ethical basis for secession. There was no article of secession in the Constitution. There was an amendment process, which would have permitted the addition of a secession clause. But, lacking that, the contract was perpetually binding.

    And not to mention that firing on Fort Sumter initiated the aggression.

    The cold war followed the hot war with Hitler. The fear of a Soviet tyrant seeking expansion of the Union of Soviet Socialist Republics, led to an arms buildup in America, especially nuclear now that nuclear was out of the bag and available to everyone.

    The cold war arms buildup was definitely insane. But fear often causes irrational behavior.

  2. bobcheeks

    It’s hard to beat Mr. Stromberg when he’s on a role. Not only do we get to kick Lincoln and Jaffa, we have some fine scholarship rooted among the sarcasm that indicates our beloved South had every right to figger there was stuff going on with those d**n Yankees all along!

    One of my problems with a “Southern” view (and yes, they had the right to secede) is why, after getting smashed by overwhelming Yankee forces, they didn’t high tail it into the mountains and keep up the fight for LIBERTY? Hey, Bobby Lee’s artilleryman, Porter Alexander, was ready to go!

    Great essay!

  3. Joseph Stromberg

    Mr. Edwards,

    The Declaration of Independence stressed rights in order to justify the expulsion of British power from the colonies that were making the Declaration, on the claim that that state (Britain) had violated Americans’ rights. The point of the revolution was to complete that expulsion, after which the former colonies would be self-governing. Nothing was said about future political arrangements between or among those colonies or states or about any “nation” in the sense of a single state, unbreakable union, or whatever. Most of the Declaration is a detailed indictment of the conduct of George III, Lord North, and the British ministry. There is no plan of future American government in it.

    If anyone wants to find the two “rights” languages that Americans used in the 1770s and ‘80s – the rights of Englishmen (under law) and natural rights – the place to look is the *state* constitutions; they are overrun with it. The federal constitution of 1787, under which we allegedly continue to dwell, is not.

    The federal constitution was about many things. It was partly about creating a future business climate such that important Federalists, who deserved to be rich, could achieve their goals. For others like Hamilton, whose watches told time in Machiavellian moments, it was partly about creating enough power at the center to meet numerous, military emergencies. No reading of the journals kept by members of the Constitutional Convention would lead anyone to believe that abstract considerations of natural rights of the kind found in the Declaration (and there, rather briefly) were a very important topic to the participants. They were more interested in concrete rights, like the right of bondholders to get paid, the right of planters to get their human property returned, etc., along with a shortlist of some of the (legal) rights of Englishmen.

    On other matters: if the states (or peoples of the states, if you prefer) were the principals establishing the constitution (as I believe they were), they did not need to include a clause reminding the forgetful who the principals were and that they reserved the right to make other arrangements if the new outfit (their agent) proved harmful to their interests and rights.

    South Carolina was either independent in 1861, or it was not. If it was, no power with which that state was no longer confederated had any rights in its territorial waters. Aggression would hardly enter into it.

    I am glad that we agree, as it appears, on the Cold War.

    And thanks to Mr. Cheeks for his generous and provocative comments.

    • Marvin Edwards

      Very nice of you to offer an explanation. My knowledge of history is more limited. I got into the Declaration while trying to solve a personal, practical problem: how to explain an “honor court” in such a way that students would be willing to report cases of cheating. The phrase, “to secure these rights, governments are instituted”, was the insight I was seeking. Instead of discussing cheating as a matter of personal honor, we needed to discuss the rights of those being cheated. You might not want to report someone’s cheating if he was only hurting himself, but you might be willing to protect the rights of someone else (the professor), in order that they would be willing to protect your rights (fair testing and grades).

      Over the years, I’ve come to distinguish just two categories of rights: “rhetorical” and “practical”. When Jefferson used the flowery language of “endowed by their Creator with certain inalienable rights”, he was being rhetorical (attempting to sway by emotion). But when Jefferson said, “to secure these rights, governments are instituted”, he was speaking in practical terms. We respect and protect an agreed upon set of rights for each other, not only by personal commitment, but through laws and their enforcement.

  4. bobcheeks

    You’re welcome Mr. Stromberg. I am requesting that, sometime, you pen an essay on why the South did not continue its struggle to create a republic via guerrilla warfare. Because Gen. Lee was ill and elderly doesn’t mean the young turks were. Doesn’t honor demand a continuation of the struggle for liberty?
    BTW, you are among my favorites on the subject.

  5. Melanie Jean Garuffi

    The idea of this proposed essay sounds good, but off the top of my head I think that “the young turks” may have been worn out by years of war. Hunger, deprivation, disease and amputations will do a lot to slow a body down.


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