President Lincoln Was A Terrorist, History Just Won’t Admit It

This article gives another perspective on liberals, libertarians and conservatives. The history both Lincoln and Sherman has been written by the victors and beyond reproach. Do we want to restore honor in this country? Can we restore honor by bringing up subjects over 100 years old? Comments are encouraged.

It’s harder and harder these days to tell a liberal from a conservative — given the former category’s increasingly blatant hostility toward the First Amendment, and the latter’s prissy new disdain for the Second Amendment — but it’s still easy to tell a liberal from a libertarian.

If what you get back is a spirited defense of the ideas of this country’s Founding Fathers, what you’ve got is a libertarian. By shameful default, libertarians have become America’s last and only reliable stewards of the Bill of Rights.

But if — and this usually seems a bit more difficult to most people — you’d like to know whether an individual is a libertarian or a conservative, ask about Abraham Lincoln.

Suppose a woman — with plenty of personal faults herself, let that be stipulated — desired to leave her husband: partly because he made a regular practice, in order to go out and get drunk, of stealing money she had earned herself by raising chickens or taking in laundry; and partly because he’d already demonstrated a proclivity for domestic violence the first time she’d complained about his stealing.

Now, when he stood in the doorway and beat her to a bloody pulp to keep her home, would we memorialize him as a hero? Or would we treat him like a dangerous lunatic who should be locked up, if for no other reason, then for trying to maintain the appearance of a relationship where there wasn’t a relationship any more? What value, we would ask, does he find in continuing to possess her in an involuntary association, when her heart and mind had left him long ago?

History tells us that Lincoln was a politically ambitious lawyer who eagerly prostituted himself to northern industrialists who were unwilling to pay world prices for their raw materials and who, rather than practice real capitalism, enlisted brute government force — “sell to us at our price or pay a fine that’ll put you out of business” — for dealing with uncooperative southern suppliers. That’s what a tariff’s all about. In support of this “noble principle”, when southerners demonstrated what amounted to no more than token resistance, Lincoln permitted an internal war to begin that butchered more Americans than all of this country’s foreign wars — before or afterward — rolled into one.

Lincoln saw the introduction of total war on the American continent — indiscriminate mass slaughter and destruction without regard to age, gender, or combat status of the victims — and oversaw the systematic shelling and burning of entire cities for strategic and tactical purposes. For the same purposes, Lincoln declared, rather late in the war, that black slaves were now free in the south — where he had no effective jurisdiction — while declaring at the same time, somewhat more quietly but for the record nonetheless, that if maintaining slavery could have won his war for him, he’d have done that, instead.

The fact is, Lincoln didn’t abolish slavery at all, he nationalized it, imposing income taxation and military conscription upon what had been a free country before he took over — income taxation and military conscription to which newly “freed” blacks soon found themselves subjected right alongside newly-enslaved whites. If the civil war was truly fought against slavery — a dubious, “politically correct” assertion with no historical evidence to back it up — then clearly, slavery won.

Lincoln brought secret police to America, along with the traditional midnight “knock on the door”, illegally suspending the Bill of Rights and, like the Latin America dictators he anticipated, “disappearing” thousands in the north whose only crime was that they disagreed with him. To finance his crimes against humanity, Lincoln allowed the printing of worthless paper money in unprecedented volumes, ultimately plunging America into a long, grim depression — in the south, it lasted half a century — he didn’t have to live through, himself.

In the end, Lincoln didn’t unite this country — that can’t be done by force — he divided it along lines of an unspeakably ugly hatred and resentment that continue to exist almost a century and a half after they were drawn. If Lincoln could have been put on trial in Nuremburg for war crimes, he’d have received the same sentence as the highest-ranking Nazis.

If libertarians ran things, they’d melt all the Lincoln pennies, shred all the Lincoln fives, take a wrecking ball to the Lincoln Memorial, and consider erecting monuments to John Wilkes Booth. Libertarians know Lincoln as the worst President America has ever had to suffer, with Woodrow Wilson, Franklin Roosevelt, and Lyndon Johnson running a distant second, third, and fourth.

Conservatives, on the other hand, adore Lincoln, publicly admire his methods, and revere him as the best President America ever had. One wonders: is this because they’d like to do, all over again, all of the things Lincoln did to the American people? Judging from their taste for executions as a substitute for individual self-defense, their penchant for putting people behind bars — more than any other country in the world, per capita, no matter how poorly it works to reduce crime — and the bitter distaste they display for Constitutional “technicalities” like the exclusionary rule, which are all that keep America from becoming the world’s largest banana republic, one is well-justified in wondering.

The troubling truth is that, more than anybody else’s, Abraham Lincoln’s career resembles and foreshadows that of V.I. Lenin, who, with somewhat better technology at his disposal, slaughtered millions of innocents — rather than mere hundreds of thousands — to enforce an impossibly stupid idea which, in the end, like forced association, was proven by history to be a resounding failure. Abraham Lincoln was America’s Lenin, and when America has finally absorbed that painful but illuminating truth, it will finally have begun to recover from the War between the States.

How Libertarians Ought to Think about the U.S. Civil
War

Timothy Sandefur
Pacific Legal Foundation

1. Introduction
For decades, outspoken libertarians have seen the U.S. Civil War not
only as a historical calamity, but as a political calamity as well. According to
many libertarians, the Union victory in the Civil War and the presidency of
Abraham Lincoln in general represented a betrayal of the U.S. Constitution
and of the fundamental principles of American political philosophy.
This interpretation rests on two major arguments as well as a variety
of more minor concerns. The more minor concerns include specific critiques
of the policies of the Lincoln Administration or of the conduct of the war by
Union forces. For example, many libertarians condemn the Union for
instituting a military draft or for suspending the writ of habeas corpus. There
are many of these specific criticisms, which deserve detailed discussion that
cannot be provided here.
1
Suffice it to say that some of these criticisms are
well-founded; indeed, libertarians deplore war precisely because it tends to
give rise to such evils.
Understanding the Civil War as a matter of political philosophy,
however, requires a systematic, two-step analysis: First, does a state have the
legal authority under the U.S. Constitution, to secede unilaterally? If the
answer to this question is yes, then the analysis is at an end; if states have the
right to secede, then the Union was in the wrong to put down the
Confederacy. If, however, the answer is no, then we must proceed to a second
step: Even illegal acts, like the American Revolution, are justified by the right
of revolution, so even if the Constitution does prohibit secession, the people
of the southern states had the right to rebel against the Union, if their act was a
legitimate act of revolution. It is essential to keep in mind the distinction
between secession and revolution. As Lincoln wrote, “It might seem, at first
thought, to be of little difference whether the present movement at the South
be called ‘secession’ or ‘rebellion.’ The movers, however, well understand the

1
For example, it ought to be noted that the Confederacy instituted a military draft as
well, and did so before the Union did. J. McPherson, Battle Cry of Freedom
(Ballantine, 1988), p. 427.
Reason Papers Vol. 28

62
difference.”
2
Was, then, the Confederate rebellion a legitimate act of
revolution?
The prevailing libertarian answers to these questions are, first, that
states have the constitutional right to secede, and that Abraham Lincoln
violated the Constitution by leading the nation into war against the seceding
states. This argument is based on the “compact theory” of the Constitution.
Second, the prevailing libertarian argument holds that the rebellion
represented a legitimate act of revolution. This argument is based on the
concept of “self-determination.”
3
These premises, however, are wrong, as are
the prevailing libertarian conclusions. In fact, states have no constitutional
authority to secede unilaterally from the union. Nor were southern states
engaged in a legitimate act of revolution, because they initiated force rather
than act in defense of individual rights.

2. Do States Have the Legal Right to Secede?
a. Three interpretations of union
There are at least three ways of looking at the nature of the federal
union under the Constitution. First, the “compact theory” of the Constitution
holds that it is much like a treaty between essentially independent states. This
theory found its first major expression in the Kentucky and Virginia
Resolutions, drafted by Thomas Jefferson and James Madison, respectively,
as a protest to the Alien and Sedition laws in 1798.
4
In the 1830s, South
Carolina Senator John C. Calhoun based his theory of nullification on these
resolutions—despite Madison’s repudiation of nullification—and thereby laid
the intellectual foundation for secession thirty years later.
5
According to the
compact theory, each state is a sovereign entity which is bound to the other
states only by a compact which it may break whenever the compact imposes
unbearable burdens on the state—just as a country may decide to break a
treaty. Under the compact theory, the federal union contains no inherent
element of sovereignty—it is a league of sovereign states. In Calhoun’s view,

2
Abraham Lincoln, Collected Works of Abraham Lincoln, ed. R. Basler, 8 vols.
(Rutgers University Press, 1953), 4:432.

3
See, e.g., J. Livingston, “A Moral Accounting of the Union and the Confederacy,”
Journal of Libertarian Studies 16, no. 2 (2002), pp. 57-101.

4
D. Mayer, The Constitutional Thought of Thomas Jefferson (University Press of
Virginia, 1994), p. 201.

5
D. McCoy, The Last of the Fathers: James Madison and the Republican Legacy
(Cambridge University Press, 1989), pp. 132-62; L. Banning, The Sacred Fire of
Liberty (Cornell University Press, 1995), pp. 387-95.
Reason Papers Vol. 28

63
the Constitution “is the government of States united in a political union, in
contradistinction to a government of individuals socially united . . . the
government of a community of States, and not the government of a single
State or nation.”
6

Opposed to the compact theory are two theories that we may call the
“weak-union” and the “strong-union” views. According to these views, the
federal Constitution is not a treaty, but a law, and the federal union contains at
least some element of sovereignty; the federal union is not seen as a league of
sovereigns, but as the government of a single state or nation.
According to the strong-union view, most famously espoused by
Daniel Webster, and later adopted by Abraham Lincoln, Charles Sumner, and
even Lysander Spooner,
7
the union of states predates the Constitution itself: It
was created by the Declaration of Independence, and the sovereignty of the
states was itself a consequence or product of national sovereignty. This view
has much to commend it; the Declaration of Independence, for instance, was
issued in the name of the “thirteen united States of America,” who, as “one
people,” were breaking their former political bonds and declaring that “these
united colonies are free and independent states.” It then goes on to describe
what “free and independent states may of right do”—things like carrying on
foreign policy—none of which was actually done by the states. In fact, at the
1787 Philadelphia Convention, Delegate Rufus King explained:

The states were not “sovereigns” in the sense contended for by some.
They did not possess the peculiar features of sovereignty,—they
could not make war, nor peace, nor alliances, nor treaties.
Considering them as political beings, they were dumb, for they could
not speak to any foreign sovereign whatever. They were deaf, for
they could not hear any propositions from such sovereign. They had
not even the organs or faculties of defence or offence, for they could
not of themselves raise troops, or equip vessels, for war . . . . If the
states, therefore, retained some portion of their sovereignty [after
declaring independence], they had certainly divested themselves of
essential portions of it.
8

6
John C. Calhoun, A Disquisition on Government and Selections from the Discourses,
ed. C. Post (Bobbs-Merrill, 1953), p. 86.

7
L. Spooner, The Unconstitutionality of Slavery (Bela Marsh, 1860), pp. 56, 78-79.

8
J. Elliott, ed., Debates in the Several State Conventions on the Adoption of the
Federal Constitution, 5 vols. (Elliott, 1836), 5:212-13. This argument formed a central
point in Justice Sutherland’s interpretation of federal foreign policy power in United
States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). See J. Eastman and H. V. Reason Papers Vol. 28

James Wilson (a signer of the Declaration) agreed, saying that he
“could not admit the doctrine that when the colonies became independent of
Great Britain, they became independent also of each other. He read the
Declaration of Independence, observing thereon, that the United Colonies
were declared free and independent states, and inferring, that they were
independent, not individually, but unitedly, and that they were confederated,
as they were independent states.”
9
Consequently, the Constitution of 1787 did
not purport to create the union, only to make it “more perfect.” Jefferson and
Madison called the Declaration of Independence “the fundamental act of
union of these States,”
10
and even at the South Carolina Ratification
Convention, when one delegate claimed that “[t]he [1783] treaty of peace
expressly agreed to acknowledge us as free, sovereign, and independent states
. . . [b]ut this new Constitution at once swept those privileges away, being
sovereign over all,” Charles Cotesworth Pinckney answered that “[t]he
separate independence and individual sovereignty of the several states were
never thought of by the enlightened band of patriots who framed this
Declaration; the several states are not even mentioned by name in any part of
it,—as if it was intended to impress this maxim on America, that our freedom
and independence arose from our union, and that without it we could neither
be free nor independent.”
11

There are ambiguities, however, which undermine the strong-union
view. Section two of the Articles of Confederation, for example, did
acknowledge the separate sovereignty of the American states: “Each state
retains its sovereignty, freedom, and independence, and every power,
jurisdiction, and right, which is not by this Confederation expressly delegated
to the United States, in Congress assembled.” This seems inconsistent with
the view that the union was created by the Declaration.
And the fact that the Continental Congress carried out foreign policy only
shows that the federative power,
12
which is only part of the national

Jaffa, “Understanding Justice Sutherland as He Understood Himself,” University of
Chicago Law Review 63 (1996), p. 1352 n. 17.

9
Elliott, Debates in the Several State Conventions, 5:213.

10
Thomas Jefferson, Jefferson: Writings, ed. M. Peterson (Library of America, 1984),
p. 479.

11
Elliott, Debates in the Several State Conventions, 4:287, 301.

12
In his Second Treatise, Locke explains that the “federative power” is that part of the
executive power which deals with foreign relations. See John Locke, John Locke’s Reason Papers Vol. 28

65
sovereignty, was vested in the national government. The nature of federal
sovereignty at the time of the American founding was at least ambiguous
13
—
surely one reason that the union needed to be made more perfect eleven years
later.
The “weak-union” view was most famously espoused by James
Madison. According to it, the Articles of Confederation did indeed
acknowledge the separate sovereignty of the American states—and that was
exactly the problem. Alexander Hamilton put it well in a sentence which is
the theme of the entire Federalist: “The great and radical vice in the
construction of the existing Confederation is in the principle of
LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or
COLLECTIVE CAPACITIES, and as contradistinguished from the
INDIVIDUALS of which they consist.”
14
The new Constitution would solve
this problem by creating a new kind of government—one of “divided
sovereignty,” partly national and partly federal, in which all of the people of
America would vest the national government with a part—limited and
enumerated—of their sovereignty. The national sovereignty would therefore
be totally separate from the sovereignty of the states. This is why Madison
insisted that the Constitution be ratified not by state legislatures, but by
special ratification conventions: To make it clear that the states were not
parties to the Constitution—thus it would “be then a government established
by the thirteen States of America, not through the intervention of the
Legislatures, but by the people at large . . . [a] distinction . . . [which] is very
material.”
15
Thus, contrary to the strong-union view, the sovereignty of the
states did not depend on the creation of the federal authority; they were two
wholly independent systems, in which the federal power was supreme within
its limited sphere—and nonexistent outside of that sphere. One might
analogize divided sovereignty to a homeowner who receives separate bills
from the electric company and the gas company. An American citizen is
separately a citizen of the state and of the federal union, and neither of these
types of citizenship is superior to or inferior to the other.

Two Treatises of Government, ed. P. Laslett, rev. ed. (Oxford University Press, 1963),
pp. 409-12.

13
Justice Chase pointed out some ambiguities in his opinion in Ware v. Hylton, 3 U.S.
(3 Dall.) 199, 224-25, 231-32 (1796).

14
Alexander Hamilton, James Madison, and John Jay, The Federalist, ed. C. Rossiter
(Signet, 1961), p. 108; see also James Madison, Madison: Writings, ed. J. Rakove
(Library of America, 1999), p. 69.

15
B. Bailyn, ed., Debate on the Constitution (Library of America, 1993), 2:619.
Reason Papers Vol. 28

66
Under either the weak-union view or the strong-union view, states
have no unilateral power to secede. Thus, in addressing whether the
Confederacy had the constitutional authority to secede, it is unnecessary to
resolve the question of whether the union was created by the Declaration of
Independence or not, because ratification resolved the fundamental point: The
federal union was an agreement between the people, not the states. The
Constitution’s fundamental premise of divided sovereignty—respected by
both the weak-union and strong-union views—means that the people of
America are bound together as one people for certain purposes, and therefore
a state may not unilaterally secede.
b. What divided sovereignty means
16

Because the sovereignty of a state is distinct from that of the union, a
state can no more absolve its people of their allegiance to the federal
government than the gas company can absolve a customer from paying her
electric bill. The people, who adopted the Constitution, may decide to allow
the people of a state to leave the union—through congressional action
(according to the weak-union view) or by adopting a constitutional
amendment (according to the strong-union view). But unilateral secession is
unconstitutional.
“In the compound republic of America,” said Madison, “the power
surrendered by the people is first divided between two distinct governments . .
. .”
17
But “[t]he main [fallacy] of nullification,” he later explained,

is the assumption that sovereignty is a unit, at once indivisible and
unalienable; that the states therefore individually retain it entire as
they originally held it, and, consequently, that no portion of it can
belong to the U.S. . . . . [W]here does the sovereignty which makes
such a Constitution reside[?] It resides not in a single state but in the
people of each of the several states, uniting with those of the others
in the express & solemn compact which forms the Constitution. To
the extent of that compact or Constitution, therefore, the people of
the several States must be a sovereign as they are a united people . . .
. That a sovereignty should have even been denied to the States in
their united character, may well excite wonder, when it is recollected
that the Constitution which now unites them, was announced by the
convention which formed it, as dividing sovereignty between the
Union & the States; that it was presented under that view, by
contemporary expositions recommending it to the ratifying

16
Obviously, in the following, I refer only to the U.S. Constitution as it existed before
the Fourteenth Amendment, which changed the nature of state and federal sovereignty.

17
Hamilton, Madison, and Jay, The Federalist, p. 323.
Reason Papers Vol. 28

67
authorities; that it has proved to have been so understood by the
language which has been applied to it constantly . . . .
18

Divided sovereignty (also called “dual sovereignty”) was the
principal innovation of the Constitution. While the strong-union view saw
ratification as simply an overhauling of the union, to the weak-union view
ratification reformed the sovereignty of the states as well as of the federal
government. But according to both views, federal sovereignty is independent
of the sovereignty of the states.
Even Anti-Federalists acknowledged that ratifying the Constitution
meant redefining American sovereignty. “Cincinnatus,” for instance,
complained that “[s]uch is the anxiety manifested by the framers of the
proposed constitution, for the utter extinction of the state sovereignties, that
they were not content with taking from them every attribute of sovereignty,
but would not leave them even the name.—Therefore, in the very
commencement they prescribe this remarkable declaration—We the People of
the United States.”
19
The “Federal Farmer” wrote that “when the people [of
each state] shall adopt the proposed . . . it will be adopted not by the people of
New Hampshire, Massachusetts, &c., but by the people of the United States . .
. .”
20
“Brutus” opposed ratification of the Constitution precisely on these
grounds: He admitted that “if it is ratified, [it] will not be a compact entered
into by the States, in their corporate capacities, but an agreement of the people
of the United States as one great body politic. . . . It is to be observed, it is not
a union of states or bodies corporate; had this been the case the existence of
the state governments might have been secured. But it is a union of the
people of the United States considered as one body, who are to ratify this
constitution, if it is adopted.”
21
Indeed, at the Virginia Ratification
Convention, Patrick Henry challenged James Madison on this point: “Who
authorized [the Constitutional Convention] to speak the language of We the
people, instead of We, the States? States are the characteristics, and the soul
of a confederation.”
22
Madison replied that the authority of the Articles of

18
M. Meyers, ed., The Mind of the Founder: Sources of the Political Thought of James
Madison, rev. ed. (University Press of New England, 1981), pp. 436-38.

19
Bailyn, Debate on the Constitution, 1:118-19.

20
Ibid., 1:275.

21
P. Kurland and R. Lerner, eds., The Founders’ Constitution (Liberty Fund 1987),
4:237.

22
Bailyn, Debate on the Constitution, 2:596-97.
Reason Papers Vol. 28

68
Confederation had been “derived from the dependent derivative authority of
the legislatures of the states; whereas this [Constitution] is derived from the
superior power of the people.”
23
The Constitution did not consolidate the
states entirely, but “[s]hould all the States adopt it, it will be then a
government established by the thirteen States of America, not through the
intervention of the Legislatures, but by the people at large.”
24

Opponents of the Constitution, therefore, were well aware that the
Constitution would create not a league of essentially independent
sovereignties, but a new nation, retaining its own sovereignty for certain
limited purposes. The Federalists explicitly defended this fact. For most
purposes, they explained, the people of the states would find their state
citizenship unchanged, but for a specified list of other purposes, the whole
people of America would now agree, as a single political unit, to invest the
union with sovereignty directly, not through any intermediary step of state
authorities. The federal and the state sovereignty travel, as it were, on parallel
rails. State sovereignty connects the sovereignty of the people of a state to
their state capital; federal sovereignty joins all the people through its national
network, to arrive at Washington, D.C. James Wilson, signer of both the
Constitution and the Declaration, told the Pennsylvania Ratification
Convention that

the sovereignty resides in the people, they have not parted with it;
they have only dispensed such portions of power as were conceived
necessary for the public welfare . . . . In order to recognize this
leading principle, the proposed system sets out with a declaration,
that its existence depends upon the supreme authority of the people
alone . . . . When the principle is once settled, that the people are the
source of authority, the consequence is, that they may take from the
subordinate governments with which they have hitherto trusted them,
and place those powers in the general government, if it is thought
that they will be productive of more good . . . . I have no idea, that a
safe system of power, in the government, sufficient to manage the
general interest of the United States, could be drawn from any other
source, or rested in any other authority than that of the people at
large, and I consider this authority as the rock on which this structure
will stand.
25

23
Ibid., 2:619.

24
Ibid.

25
Ibid., 1:820-21.
Reason Papers Vol. 28

69
So while the states would, for the most part, retain their sovereignty,
ratification meant that the whole people of the United States would now agree
to vest their inchoate power to engage in, for example, foreign policy,
exclusively in the federal government, which would be supreme for the
limited, enumerated purposes of the federal union; otherwise, wrote Hamilton,
the Constitution would “be a mere treaty, dependent on the good faith of the
parties, and not a government, which is only another word for POLITICAL
POWER AND SUPREMACY.”
26
For Hamilton, the reason for a new
Constitution was precisely to end the notion that the union was a league of
sovereigns. One of the “infirmities” of the Articles of Confederation, he
wrote, was

that it never had a ratification by the PEOPLE. Resting on no better
foundation than the consent of the several legislatures, it has been
exposed to frequent and intricate questions concerning the validity of
its powers, and has, in some instances, given birth to the enormous
doctrine of a right of legislative repeal. Owing its ratification to the
law of a State, it has been contended that the same authority might
repeal the law by which it was ratified. However gross a heresy it
may be to maintain that a party to a compact has a right to revoke
that compact, the doctrine itself has had respectable advocates. The
possibility of a question of this nature proves the necessity of laying
the foundations of our national government deeper than in the mere
sanction of delegated authority. The fabric of American empire ought
to rest on the solid basis of THE CONSENT OF THE PEOPLE. The
streams of national power ought to flow immediately from that pure,
original fountain of all legitimate authority.
27

One argument against the principle of divided sovereignty is that the
Constitution was adopted by the members of distinct states rather than by a
national referendum. But Chief Justice John Marshall (who had been a
delegate to the Virginia Ratification Convention) answered that in McCulloch
v. Maryland:

[The Constitution] was submitted to the people. They acted upon it in
the only manner in which they can act safely, effectively, and wisely,
on such a subject, by assembling in Convention. It is true, they
assembled in their several States—and where else should they have

26
Hamilton, Madison, and Jay, The Federalist, p. 204.

27
Ibid., 152.
Reason Papers Vol. 28

70
assembled? No political dreamer was ever wild enough to think of
breaking down the lines which separate the States, and of
compounding the American people into one common mass. Of
consequence, when they act, they act in their States. But the
measures they adopt do not, on that account, cease to be the measures
of the people themselves, or become the measures of the State
governments.
28

This was not only the opinion of High Federalists like Marshall. As Madison
explained (long after his break with the Federalists), the Constitution was
formed

by the people in each of the States, acting in their highest sovereign
capacity . . . . Being thus derived from the same source as the
Constitutions of the States, it . . . is as much a Constitution, in the
strict sense of the term, within its prescribed sphere, as the
Constitutions of the States are within their respective spheres; but
with this obvious & essential difference, that being a compact among
the States in their highest sovereign capacity, and constituting the
people thereof one people for certain purposes, it cannot be altered or
annulled at the will of the States individually, as the Constitution of a
State may be at its individual will.
29

These sources reveal how well understood was the central fact that the
Constitution was a government of the whole people of the United States, not a
league or treaty of states in their corporate capacities, as the compact theory
would have it. Contrary to Calhoun’s later claim that “the States, when they
formed and ratified the Constitution, were distinct, independent, and

28
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 403 (1819). See also Chisolm v.
Georgia, 2 U.S. (2 Dall.) 419, 435 (1793) (“The powers of the general Government . . .
do for the most part [if not wholly] affect individuals, and not States: They require no
aid from any State authority. This is the great leading distinction between the old
articles of confederation, and the present constitution”); ibid., 470 (Jay, C.J.) (“the
people, in their collective and national capacity, established the present Constitution”);
Respublica v. Corbbet, 3 U.S. (3 Dall.) 467 (1798); Hylton v. United States, 3 U.S. (3
Dall.) 171, 178 (1796) (per Paterson, J.,); ibid., 181 (per Iredell, J.); Ware v. Hylton, 3
U.S. (3 Dall.) 199, 236 (1796) (per Chase, J.); Banks v. Greenleaf, 10 Va. 271, 277-78
(1799) (“the general government derives its existence and power from the people, and
not from the states, yet each state government derives its powers from the people of
that particular state. Their forms of government are different, being derived from
different sources; and their laws are different”).

29
Madison, Madison: Writings, p. 843.
Reason Papers Vol. 28

71
sovereign communities,”
30
the reality is that, in Marshall’s words, federal
sovereignty

proceeds directly from the people; is ‘ordained and established’ in
the name of the people. . . . It required not the affirmance, and could
not be negatived, by the State governments. The constitution, when
thus adopted, was of complete obligation, and bound the State
sovereignties. . . . The government of the Union, then . . . is,
emphatically, and truly, a government of the people. In form and in
substance it emanates from them. Its powers are granted by them,
and are to be exercised directly on them, and for their benefit . . . .
[T]he government of the Union, though limited in its powers, is
supreme within its sphere of action.
31

As Justice Anthony Kennedy recently put it, “The Framers split the atom of
sovereignty. It was the genius of their idea that our citizens would have two
political capacities, one state and one federal, each protected from incursion
by the other . . . with its own direct relationship, its own privity, its own set of
mutual rights and obligations to the people who sustain it and are governed by
it . . . . [T]he National Government, the mark of its legitimacy, is that it owes
its existence to the act of the whole people who created it.”
32
The federal
government is directly vested with sovereignty of the whole people of the
United States. Secession is not, therefore, like a person who chooses to cancel
his membership in a club—because the states are not in the “club” to begin
with. Only “We the People” are members of the federal club, and only the
“people” which created it can change it, by altering the contours of that
“people” through amendment, or a new Constitutional Convention. So, while
the whole people may allow a state out of the union, or may even dissolve the
Constitution entirely, a state cannot claim on its own the authority to
withdraw from the union. Lincoln put it with dry understatement when he
noted that advocates of secession were “not partial to that power which made
the Constitution, and speaks from the preamble, calling itself ‘We, the
People.’”
33

These sources reveal that in 1787, both the Federalists and Anti-
Federalists recognized that the U. S. Constitution was just that—a constitution

30
Calhoun, A Disquisition on Government and Selections from the Discourses, p. 91.

31
McCulloch v. Maryland, 403-5.

32
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838-39 (1995).

33
Lincoln, Collected Works of Abraham Lincoln, 4:437.
Reason Papers Vol. 28

72
for a nation, not a league of sovereign states. And, if these sources are not
enough, as Akhil Reed Amar points out, “no major proponent of the
Constitution sought to win over states’ rightists by conceding that states could
unilaterally nullify or secede in the event of perceived national abuses. The
Federalists’ silence is especially impressive because such a concession might
have dramatically improved the document’s ratification prospects in several
states.”
34
“[I]f a more explicit guard against misconstruction was not
provided,” wrote Madison in 1831, “it is explained . . . by the entire absence
of apprehension that it could be necessary.”
35

Some of those who defend the constitutionality of secession claim
that it was foreseen, and that several states ratified the constitution did so with
explicit reservations of the right to secede.
36
This claim, however, is seriously
exaggerated. The only state which passed such a “reservation” while
ratifying, and which later seceded, was Virginia. That state’s “reservation”
read: “The powers granted under the Constitution being derived from the
People of the United States may be resumed by them whenever the same shall
be perverted to their injury or oppression.”
37
These phrases nowhere mention
any right to unilateral secession or any unconditional right to revolt for any
reason the state sees fit. Instead, the “reservation” is simply a restatement of
the right to revolution, which we will consider below. Moreover, it is made in
the name not of the people of Virginia, but of “the People of the United
States,” and it makes the unremarkable assertion that the latter have the right
to change their government.
It is also frequently argued that another set of resolutions, the
Virginia and Kentucky Resolutions, reveal the true nature of the Constitution
as a league of sovereign states, and that Madison’s later repudiation of the
compact theory was an instance of intellectual dishonesty. The facts, as usual,
are more complicated. Jefferson, whose Kentucky Resolutions unequivocally
endorsed the compact theory, sent a draft to Madison for his review. Madison
was somewhat startled by Jefferson’s argument, and he replied, “Have you
ever considered thoroughly the distinction between the power of the State, &
that of the Legislature, on questions relating to the federal pact[?] On the
supposition that the former is clearly the ultimate Judge of infractions, it does

34
A. Amar, “Of Sovereignty and Federalism,” Yale Law Journal 96 (1987), p. 1462 n.
162.

35
Madison, Madison: Writings, p. 853.

36
T. DiLorezno, The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and
an Unnecessary War (Prima Publishing, 2002), p. 91.

37
Emphases added.
Reason Papers Vol. 28

73
not follow that the latter is the legitimate organ especially as a convention was
the organ by which the Compact was made.”
38
Madison’s Virginia
Resolutions were somewhat more guarded, and, he insisted, never endorsed
the compact theory of the Constitution. Decades later, writing furiously to
oppose Calhoun’s doctrine of nullification, Madison explained, just as he had
at the Philadelphia and Richmond conventions, that the Constitution was
binding on the people, not on the states, and the states had no right to nullify
the laws:

[T]he characteristic peculiarities of the Constitution are 1. The mode
of its formation, 2. The division of the supreme powers of Govt
between the States in their united capacity and the States in their
individual capacities. 1. It was formed, not by the Governments of
the component States, as the Federal Govt. for which it was
substituted [i.e., the Articles of Confederation] was formed; nor was
it formed by a majority of the people of the U.S. as a single
community in the manner of a consolidated Government. It was
formed by the States—that is by the people in each of the States,
acting in their highest sovereign capacity; and formed, consequently,
by the same authority which formed the State Constitutions. Being
thus derived from the same source as the Constitutions of the States,
it has within each State, the same authority as the Constitution of the
State, and is as much a Constitution, in the strict sense of the term,
within its prescribed sphere, as the Constitutions of the States are
within their respective spheres, but with this obvious & essential
difference, that being a compact among the States in their highest
sovereign capacity, and constituting the people thereof one people for
certain purposes, it cannot be altered or annulled at the will of the
States individually, as the Constitution of a State may be at its
individual will.
39

In any case, what Jefferson and Madison wrote in 1798, in a series of
resolutions adopted by two state legislatures, cannot change the nature of the
federal Constitution as adopted in 1787: It is a binding government of the
whole people of the United States. No state may unilaterally leave the union.
C. Other constitutional provisions barring unilateral secession
We have seen that the nature of federal sovereignty under the
Constitution makes unilateral secession illegal. Since the Constitution is a

38
Madison, Madison: Writings, p. 592.

39
Ibid., pp. 842-43.
Reason Papers Vol. 28

74
law binding the People, and not a league of states, states have no authority to
intervene between the people and the national government. If the people of a
state wish to leave the union, they may not do so unilaterally, but must obtain
the agreement of their fellow citizens—or they must rebel in a legitimate act
of revolution.
Several other clauses of the Constitution are consistent with this
view, and would be inconsistent with any interpretation allowing a state to
leave the union unilaterally. The Constitution guarantees to every state a
republican form of government (Art. IV, sec. 4), prohibits states from entering
into any compact with other states without congressional permission (Art. I,
sec. 10), guarantees the privileges and immunities of citizens when they travel
interstate (Art. IV, sec. 2), prohibits states from entering into any “Treaty,
Alliance, or Confederation,” even with Congressional approval (Art. I, sec.
10), preserves every state’s right to two senators (Art. V), is the supreme law
of the land (Art. VI, sec. 2), and requires state officeholders to take an oath to
support the Constitution of the United States (Art. VI, sec. 3). These clauses
are inconsistent with the theory that secession is a constitutional prerogative
of state government. Consider, for example, the republican guarantee clause:
If a state could unilaterally secede, then any group of criminals might declare
themselves the “rightful” government of a state, issue a proclamation of
secession, and then leave the federal government unable to enforce the
guarantee. Likewise, if states could leave the union at any time, it would
make little sense to require state officials to take an oath to support the U.S.
Constitution, since their allegiance to the federal union would depend wholly
on whether their state decided to remain in the union or not.
One common argument is that the Tenth Amendment reserves to the
states the power to secede from the union. But this claim begs the question, in
two ways. The Amendment says that “[t]he powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.”
40
First, since the
Constitution does prohibit secession, that power cannot be reserved to the
states. And, second, the Amendment refers explicitly to “the people.” To
what “people” does this refer? Not to the people of each state separately, but
to a single people, that is, “We the People” who ratified the Constitution.
41

40
Emphasis added.

41
Believers in the “strong-union” view would argue that this is the same “one people”
who dissolved their political bands with England. Also, according to one adherent of
the strong-union view, one of the more sophisticated manifestations of the pre-
constitutional origin of the union is found in the fact that the Constitution itself limits
the degree to which the Constitution can be amended. No amendment, for instance,
was permitted to change the date of the Importation Clause, and no amendment can
deprive a state of its two senators. If the states had created the federal union, then Reason Papers Vol. 28

75
Under the compact theory, this clause would be surplusage, since no mere
league of sovereigns has the authority to reserve nondelegated powers directly
to the people of separate sovereignties, any more than the United Nations can
“reserve” any rights to the people of the United States.

3. Was the South Engaged in Revolution?
The fact that states have no constitutional right to unilaterally secede
does not end the inquiry, because people retain the right of revolution
regardless. If the Confederacy represented a legitimate act of revolution, then
the Union was still in the wrong to put down the rebellion. Madison never
denied that all people retain the right to revolution, nor did Abraham Lincoln.
Even in his First Inaugural Address, Lincoln acknowledged that “[i]f, by the
mere force of numbers, a majority should deprive a minority of any clearly
written constitutional right, it might, in a moral point of view, justify
revolution—certainly would, if such right were a vital one. But such is not our
case.”
42
Even though the Constitution is a compact between the whole people
of the United States, and thus is alterable by the whole people only, any
individual or group retains an inalienable right to fight against tyranny.
Many libertarians defend the Confederate states’ secession on the
grounds that it was engaged in a revolution consistent with the principles of
the Declaration of Independence. Writing in 1920, H. L. Mencken claimed
that “The Union soldiers . . . actually fought against self-determination; it was
the Confederates who fought for the right of their people to govern
themselves.”
43
More recently, Jeffrey Rogers Hummel has written that “as a
revolutionary right, the legitimacy of secession is universal and unconditional.
That at least is how the Declaration of Independence reads.”
44

The problem with this argument is that this is not how the
Declaration of Independence reads. In fact, the libertarian principles of

these clauses would be self-contradictory, since there could be no higher sovereignty
which could institute, let alone enforce, such a restriction on the power to amend. “A
sovereign is by definition a source and not a subject of law,” so a compact between
sovereigns can never be made unamendable. But, according to either the strong- or
weak-union views, since the whole people of the union created the Constitution only to
make that union more perfect, they could place limits on the degree to which the
Constitution itself could be altered. H.V. Jaffa, The Conditions of Freedom
(Claremont Institute Press, 2000), pp. 161, 172.

42
Lincoln, Collected Works of Abraham Lincoln, 4:267.

43
H. L. Mencken, A Mencken Chrestomathy (Vintage 1982), p. 223.

44
J. R. Hummel, Emancipating Slaves, Enslaving Free Men (Open Court, 1996), p.
351.
Reason Papers Vol. 28

76
revolution enunciated in the Declaration do not justify the Confederacy’s acts
at all.
According to libertarianism, as espoused by John Locke, Thomas
Jefferson, and others, the individual’s right to own himself puts him on a par
with all other individuals in a state of nature. Before government exists, each
person has the equal right to run his own life as every other person, and this
includes the right to self-defense. Since self-defense is difficult in the state of
nature, however, people agree to join a social compact by delegating part of
that right to the government, which is entrusted with the power to protect their
lives, liberties, and estates. But government has no authority to violate their
rights, because no individual in the state of nature has the right to violate
another person’s rights, and therefore cannot confer such a right to the
government. “[T]he Legislat[ur]e,” wrote Locke, “is not, nor can possibly be,
absolutely Arbitrary over the Lives and Fortunes of the People. For it being
but the joynt power of every Member of the Society given up to that Person or
Assembly which is Legislator, it can be no more than those persons had in a
State of Nature before they enter’d into Society. . . . For no Body can transfer
to another more power than he has in himself; and no Body has an absolute
Arbitrary Power . . . [to] take away the Life or Property of another.”
45
Thus, if
those appointed to govern “endeavour to take away and destroy the Property
of the People, or to reduce them to Slavery under Arbitrary Power . . . and . . .
endeavour to grasp themselves, or put into the hands of any other an Absolute
Power over the Lives, Liberties, and Estates of the People; By this breach of
Trust they forfeit the Power, the People had put into their hands, for quite
contrary ends, and it devolves to the People, who have a Right to resume their
original Liberty . . . .”
46
The right to revolution, therefore, is an expression of
the right to self-defense.
The right to self-ownership allows individuals to agree to a social
compact, and the right of self-defense gives that compact its legitimacy. Any
society which contradicts these fundamental premises—such as a society
based on inequality and slavery—is therefore not a legitimate government; it
is instead a criminal gang, and it cannot justify its robbery or enslavement by
claiming that the people voted for these things, because the people have no
right to enslave others in the first place.
47
Such a “government” lacks
legitimacy and may rightly be overthrown. As Lincoln summarized it, “no
man is good enough to govern another man, without that other’s consent. I

45
Locke, John Locke’s Two Treatises of Government, p. 402.

46
Ibid., p. 461.

47
A. Rand, “Man’s Rights,” in her The Virtue of Selfishness (Signet, 1964).
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77
say this is the leading principle—the sheet anchor of American
republicanism.”
48

The Declaration of Independence enunciates these principles in what
is almost a syllogism: “[A]ll men are created equal . . . endowed by their
Creator with certain unalienable Rights . . . among these are Life, Liberty and
the pursuit of Happiness . . . to secure these rights, Governments are instituted
among Men, deriving their just powers from the consent of the governed . . .
whenever any Form of Government becomes destructive of these ends . . . it is
their right, it is their duty, to throw off such Government. . . .” This right and
duty, however, may only be exercised after “a long train of abuses and
usurpations, pursuing invariably the same Object evinces a design to reduce
[the people] under absolute Despotism.”
The Declaration of Independence, therefore, far from recognizing
any “unconditional” right of people to overthrow their government, places
several important limits on rebellion: It is justified only by a collective act of
self-defense, and even then, only after “a long train of abuses and
usurpations.” And a rebellion which institutes a new government based not
on securing individual rights, but on violating them (such as a revolution that
consists of stealing people’s property), is not a legitimate revolution at all in
the eyes of the Declaration’s libertarian theory; it would be merely a massive
criminal act or coup.
These arguments are all essentially rewordings of libertarianism’s
famous maxim against the initiation of force. Libertarian theory holds that
political institutions are justified only insofar as they protect the freedom of
the individuals who make up that society. A political society’s “right to self-
determination,” therefore, is not a fundamental principle, according to
libertarianism, but is a consequence and function of the self-determination of
individuals who make up that society.
The non-initiation of force principle means that the distinction
between a revolutionary act and a crime is that the former is a kind of self-
defense, undertaken to protect individual rights, while the latter is an initiation
of force, to violate the rights of others or protect the proceeds of some
robbery. In the former case, libertarianism holds that it is legitimate to
commit acts of physical force in retaliation against those who have initiated its
use. The American Revolution, for instance, while illegal, was a legitimate
act of revolution because Parliament had declared its right to “bind [the
American colonies] in all cases whatsoever,” and had engaged in “a long train
of abuses and usurpations.” Americans had the right to defend themselves by
throwing off such government, even if doing so cost many lives.

48
Lincoln, Collected Works of Abraham Lincoln, 2:266.
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78
Analyzing the alleged “revolution” of 1861 also requires
understanding the purposes behind the act. Why did the Confederacy fire on
Fort Sumter, and thus violate the supreme law of the land? Although several
writers have tried to claim that the Civil War was not fought over slavery, but
over issues of domestic economic policy,
49
these claims are highly
exaggerated.
50
Mississippi’s declaration of secession, for example, stated
unequivocally:

In the momentous step which our State has taken . . . it is but just that
we should declare the prominent reasons which have induced our
course.
Our position is thoroughly identified with the institution of
slavery—the greatest material interest of the world. Its labor
supplies the product which constitutes by far the largest and most
important portions of commerce of the earth. These products are
peculiar to the climate verging on the tropical regions, and by an
imperious law of nature, none but the black race can bear exposure to
the tropical sun . . . . [A] blow at slavery is a blow at commerce and
civilization . . . . There was no choice left us but submission to the
mandates of abolition, or a dissolution of the Union, whose principles
had been subverted to work out our ruin.

Domestic economic policy (other than that relating to slavery) is
nowhere mentioned in this document or in South Carolina’s declaration of
secession, which focused only on “[t]he right of property in slaves” and
complained that other sates “have denied the rights of property established . . .
have denounced as sinful the institution of slavery . . . [and] have encouraged
and assisted thousands of our slaves to leave their homes.” Georgia’s
declaration reiterated its “numerous and serious causes of complaint against
[the] non-slave-holding . . . States with reference to the subject of African
slavery,” and although it complained of the fact that northern economic
interests had received federal protection (“they have succeeded in throwing
the cost of light-houses, buoys, and the maintenance of their seamen upon the
Treasury”), it did so only to protest that federal protection of slavery was
inadequate. Texas’s declaration of secession complained that “[i]n all the
non-slave-holding States . . . the people have formed themselves into a great
sectional party . . . based upon an unnatural feeling of hostility to these

49
See, e.g., Livingston, “A Moral Accounting of the Union and the Confederacy,” pp.
72-76.

50
E. Volokh, “More on Secession and Slavery,” available online at
http://volokh.com/2002_04_28_volokh_archive.html#76098962.
Reason Papers Vol. 28

79
Southern States and their beneficent and patriarchal system of African slavery,
proclaiming the debasing doctrine of equality of all men, irrespective of race
or color—a doctrine at war with nature, in opposition to the experience of
mankind, and in violation of the plainest revelations of Divine Law.”
51

These documents could hardly be clearer. The Confederate states,
whatever their other reasons for seceding, were primarily moved by the desire
to preserve their slave property from interference by the federal government,
or, more accurately, in reaction against the election of a President who had
pledged himself to halt the spread of slavery into the western territories.
52

Although the Confederates phrased their arguments in terms of “freedom,” it
was the “freedom to enslave” that they were defending. Indeed, the
Constitution of the Confederate States of America unambiguously declared
that “[n]o . . . law denying or impairing the right of property in negro slaves
shall be passed” (sec. IX, clause 4). This clause demonstrates just how off the
mark Mencken’s criticism of Lincoln really was. It was not true that “the
Confederates . . . fought for the right of their people to govern themselves.”
53

The Confederates fought for the (literally absolute) right of white people to
govern black people, without the black people’s consent.
Unlike present-day defenders of the South, the leaders of the
southern cause realized that their cause could find no support in the
Declaration of Independence. Thus, they rarely based their arguments on the
Declaration, and in fact explicitly denounced it. “There is not a word of truth
in it,” said John C. Calhoun.
54
The principle that all men are created equal, he
said, was “inserted into our Declaration of Independence without any
necessity. It made no necessary part of our justification for separating from
the parent country, and declaring ourselves independent.” Others went

51
These declarations are available online
at http://www.yale.edu/lawweb/avalon/csa/csapage.htm.

52
The Constitution, of course, barred the federal government from depriving
southerners of their slaves, except possibly through condemnation in exchange for just
compensation. But it did permit the Congress to bar slavery from the western
territories, which would become states eventually. If they were admitted as free states,
then this would mean that southerners would eventually find themselves outvoted in
Congress, which could lead to the ultimate extinction of slavery. It was Lincoln’s
insistence on forbidding slavery in the west—as enunciated in his Cooper Union
speech, for example—that served as the proximate cause of the war. McPherson,
Battle Cry of Freedom, pp. 51-72.

53
Mencken, A Mencken Chrestomathy, p. 223.

54
Cong. Globe, 30th Cong., 1st Sess. (1848), p. 875.
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farther. Senator Pettit of Indiana declared it a “self-evident lie.”
55
Governor
Hammond of South Carolina—who had once said that “[s]lavery is . . . the
greatest of all the great blessings which a kind Providence has ever bestowed
upon our glorious region”
56
—denounced the “much-lauded but nowhere
accredited dogma of Mr. Jefferson that all men are created equal.”
57

Contrary, then, to the oft-repeated claim that the Civil War was not
about slavery, the question of slavery answers the essential question which
determines whether secession in 1861 was an act of revolution, on the one
hand, or a criminal conspiracy, on the other hand. The secession of 1861 was
not a legitimate revolution, because its “cornerstone” rested on “the great truth
that the negro is not equal to the white man; that slavery—subordination to
the superior race—is his natural and normal condition.”
58
As Lincoln had said
before the war,

[w]e all declare for liberty; but in using the same word we do not all
mean the same thing. With some the word liberty may mean for each
man to do as he pleases with himself, and the product of his labor;
while with others the same word may mean for some men to do as
they please with other men, and the product of other men’s labor.
Here are two, not only different, but incompatible things, called by
the same name—liberty. And it follows that each of the things is, by
the respective parties, called by two different and incompatible
names—liberty and tyranny. The shepherd drives the wolf from the
sheep’s throat, for which the sheep thanks the shepherd as a liberator,
while the wolf denounces him for the same act as the destroyer of
liberty, especially as the sheep was a black one. Plainly the sheep
and the wolf are not agreed upon a definition of the word liberty.
59

The Confederacy, built upon the wolf’s definition of liberty, was an
illegitimate government by the libertarian standards of the Declaration of
Independence. When the Confederacy initiated force by firing on Fort

55
Cong. Globe, 33rd Cong., 1st Sess. (1854), p. 214.

56
W. L. Miller, Arguing About Slavery. (Knopf, 1988), p. 134.

57
C. Merriam, History of American Political Theories (Kelly 1969), p. 230; see also,
C. Oliver, “Southern Nationalism,” Reason (Aug.-Sep. 2001).

58
A. Stephens, “Cornerstone Speech” available online
at http://www.pointsouth.com/csanet/greatmen/stephens/stephens-corner.html (1861).

59
Lincoln, Collected Works of Abraham Lincoln, 7:301-2.
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81
Sumter, therefore, it became the responsibility of the President to “take Care
that the Laws [including the supreme law of the land] be faithfully
executed,”
60
by putting down the rebellion by force if necessary.

4. Why Libertarians Defend the South
Among the reasons that so many libertarians argue that the
Confederacy was in the right in the Civil War is their perception that Union
victory ushered in an era of federal expansion and control over the economy.
It is certainly true that, in the late nineteenth century, the federal government
intervened more and more in national economic policy. But blaming this on
Union victory is problematic at best. For one thing, the argument partakes of
the post hoc fallacy. While it is true that government manipulation of the
economy increased in the years following the war, this had many causes,
especially the rise of the Populist and, later, Progressive political movements.
These can be only distantly connected to the Union cause. Moreover, while
there was much to deplore in the culture of Yankee political economy, there
was at least as much to deplore about the culture of the antebellum south.
More specifically, some libertarians argue that the Union victory
caused an expansion of federal authority by destroying the political will of
states to resist the expansionism of the federal government.
61
After such a
bloody experience, states were less willing to say no when the federal
government proposed to step on state prerogatives. Although there is some
truth to this argument, there are two mitigating thoughts that must be kept in
mind. First, it did not entirely destroy the will of states to resist federal
encroachment; as the Civil Rights era of the 1950s and 1960s revealed,
southern states were still quite willing to resist what they perceived as federal
encroachment, through the policy of “massive resistance” to integration. But,
second, that experience shows that state resistance to federal authority is just
as likely to be inimical to individual liberty as it is to redound to the benefit of
individual liberty. State resistance, after all, is usually predicated not on
protecting individuals from oppression, but on protecting the official dignity
of state governments. For libertarians to venerate state government is
therefore a risky enterprise. As Madison explained in the Federalist, the
legitimacy of state governments is only valid so long as the states protect the
freedom of Americans: “[I]s it not preposterous,” he asked,

to urge as an objection to [the Constitution] . . . that such a
government may derogate from the importance of the governments

60
U.S. Const., Art. II, sec. 3.

61
See, e.g., W. Williams, “The Civil War’s Tragic Legacy,” Ideas on Liberty
(Jan.1999).
Reason Papers Vol. 28

82
of the individual States? Was, then, the American Revolution
effected, was the American Confederacy formed, was the precious
blood of thousands spilt, and the hard-earned substance of millions
lavished, not that the people of America should enjoy peace, liberty,
and safety, but that the government of the individual States…might
enjoy a certain extent of power, and be arrayed with certain dignities
and attributes of sovereignty? We have heard of the impious
doctrine in the Old World, that the people were made for kings, not
kings for the people. Is the same doctrine to be revived in the New . .
. ? [T]he public good, the real welfare of the great body of the
people, is the supreme object to be pursued; and . . . no form of
government whatever has any other value than as it may be fitted for
the attainment of this object. [A]s far as the sovereignty of the States
cannot be reconciled to the happiness of the people, the voice of
every good citizen must be, Let the former be sacrificed to the
latter.
62

While state resistance to federal expansion may be helpful for protecting
individual liberty, it has also often been inimical to it, and this was never more
true than in the case of the Civil War.
Finally, I suspect that one reason libertarians are misled into
embracing the Confederate cause is because of the formative event in the lives
of many libertarians, as well as the Libertarian Political Party: the Vietnam
War. The lessons that many Vietnam protestors drew from that experience
were that war is never justified, and that it is simply “none of our business”
what another country’s rulers do to the people of that country. If the
Vietnamese “choose” to live under communism, then other nations must not
interfere. Likewise, this argument goes, if southerners in the 1860s chose to
enslave blacks, then that may have been wrong, but it was none of the Union’s
business. Seeing the Confederacy through the lens of the Vietnam experience,
however, is misleading. First, it ignores the fact that, unlike in foreign policy
where a nation may choose whether or not to intervene in a conflict, the
Constitution requires the president to faithfully execute the law, including the
Constitution itself. Second, such a view obscures the ultimate values of
libertarian political philosophy. Although it is true that Americans do not owe
a duty to intervene when other nations’ rulers oppress their people, it is not
true that other nations have the right to oppress their people. To say that
another nation’s oppression of its people is “none of our business” is similar
to what Lincoln described as the perverse notion “that ‘if one man would

62
Hamilton, Madison, and Jay, The Federalist, p. 289.
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83
enslave another, no third man should object.’”
63
The United States (and every
other nation) does have the right, though not the duty, to liberate oppressed
peoples held captive by dictatorships. The federal government had the right,
and the duty, to put down the Confederate rebellion.
War is a terrible thing. But libertarianism holds that it is justified at
times, when undertaken in defense of individual liberty. As Jefferson said,
“all men know that war is a losing game to both parties. But they know also
that if they do not resist encroachment at some point, all will be taken from
them . . . . It is the melancholy law of human societies to be compelled
sometimes to choose a great evil in order to ward off a greater. . . .”
64
The
Civil War was an awful conflict, costing hundreds of thousands of lives. But
the right side did prevail in that war, and libertarians should stop doing
themselves the great disservice of defending a cruel and oppressive slave
society.

63
Lincoln, Collected Works of Abraham Lincoln, 3:538.

64
Jefferson, Jefferson: Writings, p. 356.

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Oy, this again?

How Libertarians Ought To Think About The U.S. Civil War
Reason Papers ^ | Spring 2006 | TIMOTHY SANDEFUR

Oy, this again?

How Libertarians Ought To Think About The U.S. Civil WarReason Papers ^ | Spring 2006 | TIMOTHY SANDEFUR

How Libertarians Ought To Think About The U.S. Civil War
Reason Papers ^ | Spring 2006 | TIMOTHY SANDEFUR