The Woe Due to Those by Whom the Offense Came
Lily-livered conservative Andrew McCarthy speaks up for bottomless Presidential power to spy on you, and includes a ritual invocation:
It was critical in the Civil War, when, by definition, it was done domestically — and without the slightest suggestion that federal courts should be involved.
I bring this up because it’s worth pointing out that this kind of thing is why many of my fellow libertarians get a little bit crazy on the subject of the Civil War: Lincoln really did engage in high-handed, constitutionally dubious acts and got away with them. And because he got away with them, excuse-makers for Executive Branch martinets have used the “Lincoln did it!” defense ever since.
Lincoln’s domestic security actions during the Civil War represent a cost we continue to pay, today. For that reason there will be critics of government power who judge him harshly, and with reason. These critics being human, some of them will go on to excuse his adversaries and minimize their sins. That’s a grave error, because chattel slavery was an abomination, and it was ours, written into our nation’s founding. If you are religiously minded, you might conclude that the man’s forebodings were correct, that the lasting baleful legacy of “Even Lincoln did it” is one more price the country deserved to pay for its Original Sin of holding men and women in bondage, and “The judgments of the Lord are true and righteous altogether.”
But it galls.
Comment by Sifu Tweety —
January 24, 2006 @ 12:08 am
Dammit, Jim*.
This is my problem: I spent a good chunk of the weekend coming up with a really solid, stem-winding post mocking libertarians for being selfish and naive and ill-informed, and then you go and TOTALLY FUCK IT UP FOR ME.
Whatever.
In other news, I await the day when small-brain conservatives defend Operation Yellow Elephant targetees on the basis of the draft-buyout clause in the civil war.
* Can I really have never given in to the temptation to say ”Dammit, Jim” on this site?
Comment by rilkefan —
January 24, 2006 @ 3:00 am
The country came close to dissolution in Lincoln’s day. It’s not his fault that cowardly people today justify themselves by portraying a shocking and awful but in the vast scheme of things localized event as the near-end of the world or by using lazy slippery slope reasoning.
Comment by matthew hogan —
January 24, 2006 @ 7:20 am
”…without the slightest suggestion that federal courts should be involved.”
I think there had been more than a slight suggestion, Lincoln, as I recall, merely ignored the Supreme Court on habeas corpus.
Comment by matthew hogan —
January 24, 2006 @ 7:22 am
Lincoln was to civil liberties in the US during the struggle against slavery, what FDR was to the rights of Japanese-Americans in the war against fascism.
Comment by ajay —
January 24, 2006 @ 7:26 am
Oh, I don’t know… emancipating all the slaves was a bit of a plus in civil-liberties terms, wasn’t it? You probably mean ’civil liberties of white people’. Easy mistake.
Comment by David Harmon —
January 24, 2006 @ 8:18 am
Well, if they actually wanted to correct the problems left over from the Civil War (as opposed to imitating them!), they might start by stripping corporations of their legal ”personhood”, which also dates from then. Oh my, are all the neocons hiding in their holes *again*?
The basic intramural conflict both then and now is the same conflict that made it so difficult to settle on a Constitution in the first place. This country was founded by two very different groups: religious fanatics such as the Puritans, and the ”dope-smoking Freemasons” such as Washington, jefferson, and so on. The conflict between those two groups never really got resolved, only renegotiated every so often. And it’s about that time of the century again….
Comment by John Emerson —
January 24, 2006 @ 8:28 am
One of the biggest problems with the War on Terror as we have it is that the enemy has been vastly overestimated. Osama isn’t Hitler or Stalin — he isn’t even Jefferson Davis. (More on that later sometime).
During the Civil War the US had a thousand-mile plus frontier with the enemy, the US capital was something like 50 miles from enemy lines, enemy troops invaded US soil, and a certain proportion of American citizens had sympathies with the enemy. Britain was hoping that the US would be divided permanently, and the US got little or no international support.
So anyway, if emergency measure have ever been justified, they were then.
Forgive me for using the word ”enemy”, but in 1861 all of my ancestors were Yankees, and ”enemy” seems like the right word to me. (It hasn’t escaped my perception, though, that the people who are running the US today are people who think of Lincoln as the enemy. We Yankees thought we won the war, but we didn’t).
Comment by Mr. Obscura —
January 24, 2006 @ 9:21 am
Great post, Jim. Once again you have encapsulized my thoughts on an issue without even speaking to me. How do you do that?
Lincoln is one of my favorites, and I think it is difficult to overestimate his influence on the course of our nation’s history. But he does pose some thorny problems, one of which you’ve raised here. In other words, he was neither all good nor all bad. Which indicates that he was an actual human being, rather than an icon.
On the thought of commenters in this thread who say the chattering classes overstate the threat to the nation posed by Al Quaeda and their ilk; right on!! Remember the Cold War? That was a threat to national survival. While the threat posed by WMD in their hands is grave, it does not threaten our national character as much as throwing US citizens in jail and holding them indefinitely without charge.
Comment by Dave Intermittent —
January 24, 2006 @ 9:39 am
One hundred and fifty years; that’s a long time for a precedent to stay relevent. All the more reason, though, to oppose the same argument today. I don’t want my descendants fighting this fight again in another hundred years, with that year’s model cowards arguing from a platform of ”but Bush did it in the Great Struggle!”
Comment by Gary Farber —
January 24, 2006 @ 12:19 pm
Knowing that you live for my agreement and approval, I mention that as a non-libertarian (hey, I’m all for all sorts of freedom, mind) and a Lincoln admirer, I have no disagreement with anything you said here. Well-put, as ever.
”Can I really have never given in to the temptation to say ’Dammit, Jim’ on this site?”
When can we say ”he’s dead, Jim!”?
”One hundred and fifty years; that’s a long time for a precedent to stay relevent.”
I have to point out that we do prefer, theoretically, at least, to still enjoy the precedents of 220 or so years ago, as embodied in the Constitution and Bill of Rights itself. Time doesn’t inherently negate the value of precedent. Similarly we don’t toss out the prior heritage/precedent of English Common Law, although we do modify it, sometimes for better, sometimes for worse.
Comment by Wild Pegasus —
January 24, 2006 @ 2:28 pm
[C]hattel slavery was an abomination, and it was ours, written into our nation’s founding.
Speak for yourself. I’ve never had anything to do with slavery.
- Josh
Comment by Dave Intermittent —
January 24, 2006 @ 2:36 pm
Gary,
True, the passage of time itself doesn’t sunset precedent. But the passage of time does invite a more sceptical look at the value of a precedent. If the sole authority for the proposition you’re pushing is Blackstone, well, you’re going to have problems.
Comment by Leonard —
January 24, 2006 @ 5:55 pm
Although it’s true that Lincoln ran roughshod over the Constitution that he swore to uphold… and it’s true that his abuse of power irritates libertarians especially when used as a positive example for our time… that’s not the main reason Lincoln is reviled by the hardcore liberty types.
The main reason is that he destroyed the right of secession. Thus the original Constitutional order was lost.
Comment by Neel Krishnaswami —
January 24, 2006 @ 8:16 pm
I dunno, Leonard. Putting on my John Locke hat, it doesn’t really make sense to speak of the ”rights” of a state. Rights inhere to the individual, and states are constituted to and gain legitimacy from protecting them. Taking a look at, say, the first paragraph of Mississipi’s declaration of causes of secession, we see:
It’s impossibly hard to construe this as sovereign individuals constituting a liberal order for their mutual benefit.
Comment by Jim Henley —
January 24, 2006 @ 10:29 pm
Leonard, I don’t get the fetish some libertarians make of state’s rights and secession. A state or local government can oppress me as much as a national one can, esp if it needn’t answer to the national entity for how it treats me. Esp if I’m a chattel slave, you know, but not only then.
State governments are governments and staffed by people who have sought power. Basic libertarian theory suggests that the first question they’ll ask when deciding whether or not to secede will be which course of action best serves their own class and individual power/status.
I have a certain sympathy for all the ”closer to the people” talk. But it’s important not to overstate the value of that.
Comment by Jim Henley —
January 24, 2006 @ 10:37 pm
ajay, you’re very glib, and I’m not in a position to cast stones about that sort of thing, but I assume your take on the Civil War era and slavery isn’t as shallow as your comment.
Obviously, ending chattel slavery was a great gain for individual liberty. Obviously, suspending habeas corpus, threatening to jail the Supreme Court and clapping dissenters in jail is not. Does the former outweigh the latter. Yes.
*But that doesn’t make the latter something to be proud of*. It doesn’t make it *no big deal*. It doesn’t even make it *necessary*.
Every ”Western” country ended chattel slavery by the late 19th Century. Only two of them, Haiti and the United States, needed wars to do it. *That is not an achievement*. There are people who want to make the American Civil War the model for our foreign policy – go abroad and destroy monsters – when the only thing worse than ending chattel slavery via Civil War would have been keeping chattel slavery in perpetuity.
Comment by Kevin Carson —
January 25, 2006 @ 12:27 am
”The country came close to dissolution in Lincoln’s day.”
Close isn’t good enough.
I never understood the nineteenth century Whiggish attachment to ”eternal union.” It strikes me as just another example of worshipping something because it’s big. I’d prefer that whatever union exists do so with the unanimous consent of its member states. And a new unwritten constitution founded on conquest, in place of the voluntary federation of 1788-89, was in my opinion a far greater disaster than disunion would have been.
I don’t have much use for the Lew Rockwell neoconfederates or the Kennedy brothers myself, but I try to separate the right of secession from the tainted legacy of the southern planter class.
Finally, a former U.S. divided into two or more confederacies would have been a lot less inclined toward global activism. Had the country not been dragged into St. Woodrow’s war, the world would be a lot better place today.
Comment by Kevin Carson —
January 25, 2006 @ 12:31 am
BTW, remember when it was *liberals* who defended executive aggrandizement based on the precedents set by Great Wartime Presidents ™? Now it’s self-described ”conservatives” who worship at the shrine of Lincoln, Wilson, FDR (and the honorary Churchill), and who quote Quirin and Curtiss-Wright as holy writ.
Comment by Leonard —
January 25, 2006 @ 2:03 pm
Neel & Jim -
yes, the particular instance of secession we are talking about here was a matter of states seceding from each other. Yes, evil states (but I repeat myself).
But secessionism is not only a matter of states relating to other states. As Neel points out, rights inhere in individuals — people — not collectives. The right to secede that the several states have, can only arise from the right to secede that each individual has. No innocent individual may be held in bondage to another. And so no collection of innocent individuals should be held in bondage to some other collective.
No, the issue at question in the civil war was not about ”states rights”, or at least, not the issue that radical libertarians care about. The issue was secessionism, not just ”is it OK at the top”, but ”is it OK at all” – all the way down. Do people have the right to self-government? The answer from Mr. Lincoln was ”no”. That the answer in the South was also ”no” (albeit of different groups of subjects), should not obscure the fundamental immorality of Lincoln’s position.
What Lincoln destroyed was not just the United States of America; what he destroyed was the Spirit of ’76: ”to secure [natural rights], Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness…”
Comment by Francis —
January 25, 2006 @ 2:25 pm
re secession and civil war: Didn’t the South shoot first, especially the attack at Fort Sumter? It makes for a better argument that the southern states (or, more appropriately, individuals within the southern states) were in armed rebellion against the duly constituted federal government.
rilkefan: i think one can legitimately argue that the country did dissolve, and was reformed under the 14th amendment.
Comment by Barry —
January 25, 2006 @ 5:36 pm
Leonard, that’s sort of an odd ’Spirit of ’76’. It couldn’t be destroyed by the fact that a serious chunk of the country was built and run on slave labor, but it could be destroyed by seccession being abolished.
Jim: ”Leonard, I don’t get the fetish some libertarians make of state’s rights and secession. A state or local government can oppress me as much as a national one can, esp if it needn’t answer to the national entity for how it treats me. Esp if I’m a chattel slave, you know, but not only then.”
It’s neo-confederatism. Sometimes the coat of paint is thin, sometimes thick, sometimes there’s no paint, just proud polish. But it’s always neo-confederatism.
Comment by Jeff —
January 25, 2006 @ 5:44 pm
Well, I am comfortable giving Bush the additional powers he claims for himself the minute 40% of our population rises in armed rebellion against our lawful government.
Of course, at the rate things are going, I’d be in the 40%, so maybe not.
Pingback by Positive Liberty » Blog Archive » Occasional Notes: Large Toads Edition —
January 25, 2006 @ 6:36 pm
[...] . Doesn’t anyone fact-check their proverbs anymore? Sheesh.) Lincoln Did It Too: Jim Henley complains of conservatives — read authoritarians — using Lincol [...]
Pingback by Positive Liberty » Blog Archive » Occasional Notes: Large Toads Edition —
January 26, 2006 @ 9:57 am
[...] . Doesn’t anyone fact-check their proverbs anymore? Sheesh.) Lincoln Did It Too: Jim Henley complains of conservatives — read authoritarians — using Lincol [...]
Comment by Barry —
January 26, 2006 @ 12:58 pm
Jeff, that’s a good one. And more and more, I’m thinking that we democrats should have used that during the 1990’s, because, as defined now, 40% of the adult population *was* Hating and Betraying America.
Comment by washerdreyer —
January 26, 2006 @ 5:06 pm
For a (convincing to me) argument that the ratification of the Constitution included states agreeing to give up the ability to secede unilaterally, and that this fact was brought up (as a negative) at ratifying conventions which nevertheless proceeded to ratify, see the early parts of Akhil Amar’s America’s Constitution, A Biography. Sorry for the lack of more specificity in my cite, I blame laziness.
If the argument in the post is rather that the states cannot give up the right to secede, even if they try to, because it’s inalienable, I don’t even really know what kind of counter argument can be used against that, other than to note my disagreement and carry on.
That’s all addressed to the comments, I don’t disagree with the post.
Comment by Leonard —
January 26, 2006 @ 5:51 pm
Yes, no state can give up its right to secede, because that ”right” is merely the proxied right of free association of its citizens.
Of course, practically speaking it is true that we are none of us free. Your state will crush you if you seriously attempt to assert your independence. (Don’t try.) But that is wrong, which is exactly what we are talking about here.
It was Lincoln, more than any other man, that established the precedent that even in modern liberal republics, man serves the State, and not vice-versa. Earlier there had been a notion that the State should serve men; that governments derive their just powers from the consent of the governed.
Trackback by newsrack —
April 3, 2006 @ 11:39 am
Lincoln v. Bush
A couple of months ago, Jim Henley took note of a conservative commentator using Lincoln’s Civil War actions as cover for Bush’s warrantless surveillance.