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In Sandefur and Federal Supremacy I made the point that according to Sandefur’s argument, “slavery is completely irrelevant” to the question of the Civil War, because “[a]ccording to this theory, even if none of the United States had had slavery in 1861, it would still have been a ‘mere criminal conspiracy’ for the South to secede, without permission from Congress.”

Just came across Sandefur’s reply, Half-point for Kinsella. Sandefur quotes the above, and says I am correct. But then he says I only get it half-right, since I omit the second step–of whether a criminal secession is “justified”. Writes Sandefur: “In my view, criminal conspiracies are sometimes justified—that is, when they are acts of legitimate revolution. For instance, the framers signing the Declaration of Independence in 1776 were engaged in a criminal conspiracy, too. But in that case the criminal conspiracy was justified because it was an act of revolution.

“So we have to go to the second question—given that secession was illegal, was it a legitimate act of revolution? At that step, slavery becomes relevant, because it is what shows that the secession of 1861 was not a legitimate revolution.”I find this reply to be slippery and disingenuous. (I emailed Sandefur to give him a chance to correct my understanding of his views, but he has not done so.) According to his theory, whether or not the Southern States had slavery, their act of revolution was not justified. Suppose all the Southern states had abolished slavery and then seceded anyway. Sandefur would maintain that the secession is criminal, unconstitutional, and not justified–because it is not in response to a long train of acts of despotism, tyranny, or abuse by the Union.

So Sandefur is wrong: I understand his argument has a second step. First, you ask if secession is a criminal act (Sandefur says yes); then, you ask if it’s nevertheless a justified act of revolution. Sandefur answers this latter question “no” because there are no grounds for revolution. Why? Because there was not tyranny by the feds, no “long train of abuses.” Anyway, how can a state imposing tyranny (by having slavery) claim to be revolting from tyranny? They don’t have “clean hands”. But even by this logic, slavery just helps to prove that a revolution is not justified; but it is not justified anyway, even if there was not slavery. Why doesn’t he just admit that slavery is irrelevant to his argument?

I think the reason is that he needs the slavery argument in order to justify getting righteous and saying that millions of deaths is justified to stop the horrible scourge of slavery–which sidesteps the truth that, by his argument, if slavery had been abolished in the South already (and the Union as a whole), and the South tried to secede, his legalistic view is still that the Union could use force to stop it the secession, and presumably kill hundreds of thousands of people to stop it–so he endorses all this killing whether or not there is slavery to stop. In other words, it’s all about preserving the state, the government, the Union, at any cost, whether or not there is slavery. Sounds a lot like Abe Lincoln, except that Lincoln said he would keep, or abolish, slavery, as long as it was necessary to preserve the Union.

Moreover, if this is his theory, I cannot see how he thinks the original American secession from Britain was a justified revolution. After all, here we had a revolt of thirteen slave-holding colonies from the non-slave Britain; and it is doubtful that the secession was a justified revolution anyway. As Joe Stromberg wrote me privately, “Actually, on his argument, the American Revolution was entirely unjustified. […] I mean, how high were taxes? Admittedly, there was some concern about Parliament’s claim to ‘bind the colonies in all things’ and their tinkering with the court system, but these dangers were down the road, and would it not be enough to call the revolutionaries ‘paranoid’? Plus, a good many of these anti-British agitators were slave-owners, and not just in the South!”

How Sandefur can support the original US revolution but not that of the South is a puzzle.

As Tom DiLorenzo mentioned to me by email, Sandefur is “merely repeating what Harry Jaffa taught him when he was a Lincoln Fellow at Claremont. The fact is, if your supposed right of secession is subject to the approval of some armed gang, then you really have no such right, ever. I think all the talk about justified and unjustified ‘revolutions’ is semantic gibberish invented by Jaffa. I’ve never run across this in all the reading I’ve done of the founders; the only place I’ve ever seen it is in Harry Jaffa’s writing and in that of his followers like Sandefeur.

“The Union was a voluntary union, just like your marriage. According to the Jaffa and Sandefeur logic, unless your wife abused you severely for years and years (or some arbitrary time determined by Jaffa), she would have the right to kill you if you ever filed for separation, let alone divorce.

“During my debate with Jaffa he was asked repeatedly by members of the audience if there was ever a justification for secession and he said no. Even [a prominent libertarian who is sympathetic to government], who was there, looked befuddled by this. Sandefeur is trying to squirm his way out of the corner you painted him into.”

In response to my recent post about Sandefur’s theory of revolution, Sandefur posts this response on another blog.

He writes: “Unilateral secession is unconstitutional and illegal. The President of the United States is charged with the Constitutional duty to see that the laws are faithfully executed. If people resist him at point of arms—that is to say, if they initiate force—he has the Constitutional authority to use arms to enforce the law, even if that means killing people.”And also: “I will try one more time to be as clear as I possibly can, so that I might not be accused of attempting to avoid anything which I have repeatedly tried to make clear: unilateral secession is unconstitutional and illegal. The President has the Constitutional duty to see that the laws are faithfully executed, and if people resist the execution of the law at point of arms, the President has the lawful duty to use arms to put down that rebellion. This is true regardless of whether slavery is involved or not. Secession might, however, be a legitimate act of revolution, if it were done to preserve freedom against oppression, as was the case in the American Revolution. That, however, was not the case in the Civil War, because the south seceded, not to preserve freedom, but to perpetuate the enslavement of millions of innocents.”

Sandefur has expressed his position very clearly, except for one thing. The real test he seems to use is that even an otherwise illegal secession can be a “legitimate act of revolution” if it is done “to preserve freedom against oppression”. Now, he keeps saying that the reason the Southern secession was notdone “to preserve freedom against oppression”. and therefore not a “legitimate act of revolution”–is that it was done “to perpetuate the enslavement of millions of innocents”. Something done to perpetuate slavery is not aimed at preserving freedom from oppression.

The problem with this is that even if the South had already abolished slavery, still, according to Sandefur, it would not be a legitimate act of revolution. It would just be an illegal act of rebellion, since it would not have been in response to an oppressive government. According to Sandefur, the Revolution of 1776 was a legitimate “act of revolution because it was a response to an initiation of force—that is, it was a defiance of the Parliament’s claim to bind the colonies in all cases whatsoever—the same claim, of course, that was made by the slave power towards the slaves. The Declaration of Independence makes clear the grounds on which revolution is justified—that when a long train of abuses has evinced a design to reduce a people under absolute despotism, it is their right and their duty to throw off such government.”

However, the Union was not “oppressing” the Southern states in this manner, and therefore, even if the South had not had slavery, it could not have legitimately revolted. If it had tried to, Lincoln could have still put them down by force. That is why I say slavery is irrelevant to Sandefur’s view: whether or not the South had slavery, their secession would have been illegal and not a justified revolution; therefore, Lincoln would have been justified in using force to stop the secession, even if it meant lots of people would get killed. Therefore, Sandefur’s view is that it’s worth millions of lives to preserve the Union, whether or not there is slavery.

This is a clear implication of his views. He seems to avoid granting this explicitly, in his blogged response to me, instead changing the question to whether the slaves could have revolted from their masters if they had been oppressed. This evades the question. But in private email with him (which he gave me permission to reproduce), I asked him:

“if I understand your theory correctly, EVEN IF the South did NOT have slavery, it would STILL not be an act of revolution–because unlike the US revolting from Britain, the South didn’t have a reason to revolt, it was not responding to a long train of acts of despotism etc.”

His answer: “That’s right. It would be an initiation of force [by the South].” So, he explicitly admits that whether or not the South had slavery in 1861, their act of secession from the US that atually existed at the time, would have been illegal and NOT a justified act of revolution. How he can continue to maintain that slavery is relevant even to his own theory, I have no idea.

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A couple of other points. Sandefur writes: “Third, Kinsella writes that I “get[ ] righteous and saying that millions of deaths is justified to stop the horrible scourge of slavery….” Let’s be clear. I responded to a letter to the editor which asked whether it was worth 600,000 deaths to end slavery. The answer, I said, and I still say, is yes. It would have been worth it at a million times that cost. If this is “getting righteous,” well, make the most of it. I would think it was far more embarrassing to “get righteous” by saying that abolishing slavery was not worth “all this killing.””

This is a cheap shot. This subtly implies that people like me are not concerned about slavery or don’t care to abolish it; this is absurd. My view is that the slaves had every right to rise up and kill their masters, or use force to free themselves. I have tried to clarify that Sandefur’s view is that “all this killing” is justified to stop an illegal and unjustified rebellion, NOT to stop slavery.

Writes Sandefur: “I expect this to be my last word on the subject. I have made my point repeatedly clear, and all that I get back from the other side is accusations that I love seeing people killed, and that I’m just a puppet of Harry Jaffa, and so on and so forth.”

Let me be clear again: I didn’t say he loved seeing people killed; I accurately described his view that if people have to be killed in an enforcement action putting down an illegal and unjustified act of secession, then that is acceptable. I have tried to clarify that he believes this in the case of an illegal and unjustified rebellion whether or not there is slavery, to show what I think to be horrible consequences of his theory. But I am not inaccurately describing his views or the consequences of those views.

Nor have I said he is a puppet of Harry Jaffa; I fully believe that Sandefur is an independent thinker who for his own reasons accepts the soundness of (many of) Jaffa’s views. Sandefur’s views are wrong because they are unsound, not because they are based on Jaffa.

Sandefur concludes that we have “proposed no serious analytical answer to the arguments I’ve mustered, and all they do is insist that libertarianism means that if a state wishes to oppress its own people without interference from Washington, it has the sovereign right to do so.”

I could not disagree more strongly. We do not merely make assertions; we have good reasons for believing that the States have a Constitutional right to secede. We may be wrong; Sandefur may disagree; but it is absurd to say we have no serious view on this. Indeed, we have many serious reasons for disagreeing with Sandefur. I am sure Sandefur is well-aware of the vast body of serious thought on why the States have a Constitutional right to secede; anarcho-libertarian and libertarian arguments against the federal government’s right to go to war against the South, etc.

And to conclude–I, for one, do not agree that libertarianism means that if a state wishes to oppress its own people without interference from Washington, it has the sovereign right to do so. Rather, libertarianism means opposition to and distrust of centralized coercive power. And it also means recognizing the value of some of the structural limitations placed on the federal government in the Constitution; and it means recognizing, therefore, that the federal government was never granted the jurisdiction or power to prevent secession, nor were the States Constitutionally prevented from seceding. Sandefur can disagree with this, but that is what I believe, not that states have a “sovereign right” to enslave people. In fact, states do not have the right to enslave people (or more precisely, to enforce and legitimize the practice). Slavery is of course a travesty and individual rights violation. This fact does not, however, mean that the Union has the Constitutional right to invade a seceding state.

***

A final note: Sandefur writes: “I believe it is absolutely worth 600,000 deaths to have freed the slaves, and I believe it would be worth it at ten million times that price. (Joseph Sobran has conceded this point, and has even exceeded my estimate by saying, in print, that he believes it was worth billions of lives to free even a single slave.)”

I cannot speak for Sobran but I suspect he was joking to show the lack of proportion in Sandefur’s willingness to condone the spilling of seemingly unlimited amounts of blood, especially in view of the background that slavery probably would have been peacefully outlawed before long anyway.