Thursday, June 14, 2012

The law tells it as it was


One of the more irritating historical memes is the preposterous notion that the American Civil War was not "really" about slavery, it was about tariffs and states rights. Fortunately, it is easy to demolish this claim for the historical canard it is.

All one has to do is to read the Constitution of the Confederate States of America. In particular, since it was an amended version of the Constitution of the United States of America, read it in clause-by-clause comparison.

There are some changes which arguably made for better governance. In the words of the commentator providing the aforementioned comparison:
The President's term limit and line-item veto, along with the various fiscal restraints, and the ability of cabinet members to answer questions on the floor of Congress are all innovative, neutral ideals whose merits may still be worth pondering today.
Then there are the shifts in the power of the states. Confederate States actually lost more powers than they gained:
At least three states rights are explicitly taken away--the freedom of states to grant voting rights to non-citizens, the freedom of states to outlaw slavery within their borders, and the freedom of states to trade freely with each other.
States only gain four minor rights under the Confederate system- the power to enter into treaties with other states to regulate waterways, the power to tax foreign and domestic ships that use their waterways, the power to impeach federally-appointed state officials, and the power to distribute "bills of credit."
The Constitution did not even change those sections which were particularly controversial regarding the powers of the States at the time:
the CSA constitution does not modify many of the most controversial (from a states' rights perspective) clauses of the American constitution, including the "Supremacy" clause (6-1-3), the "Commerce" clause (1-8-3) and the "Necessary and Proper" clause (1-8-18). Nor does the CSA take away the federal government's right to suspend habeus corpus or "suppress insurrections."
As for tariffs and trade policy mattering so much, not only did the Confederate government retain all its powers to tax foreign trade, the Confederate States were given more power over trade, including trade with other Confederate States. So, free trade hardly seems a cause dear to the hearts of the Confederate Founding Fathers.

What was very dear to their hearts, however, was slavery:
As far as slave-owning rights go, however, the document is much more effective. Indeed, CSA constitution seems to barely stop short of making owning slaves mandatory. Four different clauses entrench the legality of slavery in a number of different ways, and together they virtually guarantee that any sort of future anti-slave law or policy will be unconstitutional. People can claim the Civil War was "not about slavery" until the cows come home, but the fact remains that anyone who fought for the Confederacy was fighting for a country in which a universal right to own slaves was one of the most entrenched laws of the land.
The suggestion that tariffs mattered so much that they were worth fighting to break the country up over is frankly risible. It being nonsense is particularly obvious to an historically aware Australian, because Free Trade versus Protection was THE great political divide in the late C19th and early C20th in the Australiancolonies. And what did those same colonies do while being bitterly divided in the aforementioned way? They federated together to form the Commonwealth of Australia.

In the antebellum years, the South had dominated the Presidency essentially until the election of Lincoln in 1860. The South had lost control of the House of Representatives years before and had recently lost control of the Senate. Their own political domination the Southern political class regarded as acceptable, Northern political domination not so.

Why this mattered is because there was a strong Northern push to abolish slavery: part humanitarian, part political calculation to redirect Northern worker anti-immigration angst away from the political dead-end of nativism, and part claim over Western resources. Slaves represented about one-third of the total capital of the South. Anything that put that at risk was worth fighting over. Especially as the abolition of slavery would have also massively devalued the votes of white Southerners generally and undermined their incomes (due to direct labour and other competition). In other words, slavery was also deeply in the political and economic interests of Southern whites who were not slaveowners. That was also worth fighting over. The go-to book on this is Nobel Laureate Robert Fogel's Without Consent of Contract: The Rise and Fall of American Slavery.

Trade policy merely represented a point of argument over much larger differences.

Fighting and losing the Civil War did devastate the South: even apart from direct war damage. First, because a third of its capital was liquidated overnight, in the only mass property confiscation from whites in US history. Second, it was forced to pay for Northern war pensions. Third, because keeping the whites on top meant resources were expended keeping the blacks down and use or development of their skills was minimised. As Thomas Sowell has pointed out, it hardly seems accidental that the economic renaissance of the South took off just as the Civil Rights Acts were passed and resources were no longer being doubly wasted in that way.

Slavery had been the great contradiction in the United States, a country created in a Revolution which supported both property rights and general liberty but incorporating property rights based on the most absolute denial of liberty. (Hence anti-slave Tory Dr Johnson’s comment “How is it that we hear the loudest yelps for liberty among the drivers of negroes?”)

The American Revolution was also a reaction to the British Crown’s insistence on keeping its treaties with the Amerindians (much to the frustration of land-hungry settlers). While Somersett’s Case—declaring slavery to be unrecognised by common law—was another sharp reminder that Americans had no say in British decisions.

One of the revealing questions for American history is: why did the Canadian colonies not revolt? After all, they also suffered the problem of "taxation without representation". What we now call "Canada" was originally just those British North American colonies which did not revolt against the British Crown. (Just like what we now call "Belgium" was the bit of the Low Countries that the Habsburgs managed to hold onto.)

The answer is--the Canadian colonies were not populous enough that land-hunger was serious issue, slavery was unimportant and they still needed the British Crown to arbitrate between English and French settlers. In other words, the Imperial trade-off still worked for them. It was not merely the lack of say in British decisions which was important to the colonies that did revolt--an issue which was brilliantly expressed in the slogan "no taxation without representation". It was that there were key issues which really mattered to them: in the Northern colonies, expanding into Amerindian land. In the Southern colonies, keeping slavery.

And those same issues mattered in the Civil War. The Northern States wanted to elbow out Southern interests in seizing Amerindian land (a key reason why Amerindians supported the Confederate cause, just as they had supported the Crown cause in the American Revolution, and ended up big losers yet again from the Northern victory) and the South wanted to preserve slavery. But now those issues drove them to war with each other, rather than a shared war against the British Crown.

There is a great deal to admire in American political history. But that is way not the same as not being realistic about it.

The American Civil War was about slavery (and seizing Amerindian land). But so was the American Revolution. The saving grace for both that was not all they were, or came to be, about.

The rhetoric used to inspire and persuade for the first Revolt and against the Second had much greater resonances. The US Declaration of Independence, the writings of Thomas PainePatrick Henry's Give me liberty or give me death speech, the Gettysburg Address, Lincoln's Second Inaugural Address, are all key documents in the formulation of modern political democracy. As are The Federalist Papers and the effort to create an enduring republican order. That the American Republic was able to fight a long and bitter civil war and survive as an electoral republic rebutted the common C19th view that history proved that democracies were unstable and short-lived, unable to survive great crises.

Nevertheless, the American Civil War was triggered by secession which itself was motivated by the defence of slavery. The American Civil War simply would not have happened without slavery. It was the Confederate cause, and the Southern political class expressed their attachment to it (but not free trade) in the Constitution they wrote for their new country.

[Cross-posted at Skepticlawyer and at Critical Thinking Applied.]

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