Josh Chafetz, one of the voluminous Volokh Conspiracy conspirators, ignited a small fire storm by writing that “one thing they both [the Confederate flag and the Confederacy] stand for is the single greatest act of treason in American history.”
That’s true, just as it’s true that George Washington, Patrick Henry, Thomas Jefferson, et. al. would have been regarded as traitors (I mean on both sides of the Atlantic) if the British had won what can not inaccurately be described as our first civil war.
Indeed, with that thought in mind it may be helpful to consider a counterfactual: what if Stephen Douglas’s “popular sovereignty” had prevailed; both Kansas and Nebraska had both come into the Union as slave states, with the prospect of future slave states in the west based on the mining industry joining them later; and the fledgling Republican Party, seeing the North becoming a permanent minority, had led a secession movement? We know (this is not counterfactual) that the midwest states opposed the expansion of slavery in good part because they did not want blacks of any kind, slave or free, in their territory, and passed laws barring the immigration of free blacks.
Lincoln once said that his primary loyalty was to preserving the union, that if he could do that by freeing all the slaves he would do it; if he could save it by freeing none of the slaves he would do that; or if he could save it by freeing some and leaving others enslaved he would also do that. Thus it is interesting to speculate what he would have done if it had been Illinois and the other free states that seceded from the union. Certainly if he had gone with his state he would have done so firmly in the conviction that he was being true to the principles of the Constitution and was no traitor.
But that’s what Lee, Davis, and their fellow revolutionaries thought as well. History, however, and the Union armies, proved them wrong.
“That’s true, just as it’s true that George Washington, Patrick Henry, Thomas Jefferson, et. al. would have been regarded as traitors (I mean on both sides of the Atlantic) if the British had won what can not inaccurately be described as our first civil war.”
While perhaps true that Washington, et al, might have been regarded as traitors here were the outcome of the Revolution different, Professor Amar (to whom Chafetz links in support) makes a distinction between the Revolution and the Confederacy on legitimizing principles other than just the outcome. (I don’t know if Amar does so in that particular paper, but I’ve seen him make that argument elsewhere.)
I tried to read Professor Amar’s essay that Chafetz linked to and ran out of gas halfway. I did skim the rest of the article . . . . .
Amar’s main legitimizing principle for the Civil War seems to be Lincoln’s strict, faithful adherence to the Constitution and principles of democratic government. Which is fair enough.
Except that Amar fails to mention that while Lincoln followed the Constitution faithfully where it allowed him to do what he wanted, in cases where the Constitution stood in his way he felt free to bend it to his will.
Lincoln’s controversial suspension of Habeas Corpus allowed him to arrest approximately twenty thousand political prisoners and hold them without charges or trial, to order the closing of over three hundred newspapers, and to prevent legitimate state legislatures from meeting. Lincoln also ordered the blockade of the South, and explicitly and implicitly defied the Supreme Court.
The April 19th blockade of Southern ports is controversial because blockades are considered an act of war and only Congress can declare war and it had not. When Lincolc then called for volunteers to enlarge the army and navy on May 3, he thereby usurped the power confided to Congress to raise armies and maintain navies. On April 20, he ordered the Secretary of the Treasury to spend public money for defense without congressional appropriation, thereby violating Article I, section 9, of the Constitution.
Please note, none of this is intended to defend the Southern rebellion. None of it. But Lincoln was a very complicated character, and it’s quite difficult to defend his most aggressive actions. Especially when you try to do it based on legitimizing principles and Lincoln’s adherence to the Constitution. THAT doesn’t work, and Amar and Chavetz are wrong to try.