Positive Liberty

Two comments to my last post about the Doughfaces bring up interesting points.

Larry Fafarman writes, “I think that in many ways the USA is not much different today than it would have been had there been no secession or Civil War. I think that the trend towards centralization of government in the federal branch was inevitable. A major part of that centralization is the income tax, which did not even start until 1913.” And VRB comments on the strangeness of libertarian defense of secession: “it seems it is an attempt to give a more noble reason for secession, than anything related to slavery. For some reason the rehabilitation of the South is necessary.”

These two comments are related, I think. One of the reasons the Doughface Libertarians do what they do is because they have the immature desire to find some Point Where It All Went Wrong, that they can say, “well, if it hadn’t been for such and such, America would have stayed true to its libertarian heritage.” Pointing to Lincoln and the Civil War is handy, therefore, because it’s much easier than acknowledging the vastly more complicated true history of America’s gradual turn away from its constitutional roots. (A similarly unfortunate thing happens when more sophisticated libertarians point to 1937’s Carolene Products decision as the Point Where It All Went Wrong.) The true story of America’s centralization involves the Populist Era, which blends in with the Progressives—the influence of German philosophers like Hegel and Fichte and their American disciples like John Dewey and so forth—and then the New Deal…and all of this is far more complicated. The trend toward centralism is really the result of these movements, which span at least 50 years (1880-1930) and really more like a century, if you start with the Populists of the 1870s and end with the Great Society programs. And that’s why I agree with Mr. Fafarman in part, that it seems likely that centralization would have occurred anyway.

Interestingly, I suspect that, had the CSA somehow effected its independence, it would eventually have become even more centralized than America is today. The Confederate constitution was so severely weakened by its states rights ideology that it would have inevitably led to the sort of conflicts which, in reaction, would have led the people of the south to call for greater and greater powers given to their central government in Richmond. This seems counterintuitive, but remember that before the war it was southern slaveholders who called for the greatest expansions of centralized power in American history up to that point: namely, the Fugitive Slave Act (which they got) and a national slavery law (which they didn’t get). These laws authorized or would have authorized federal agents to intrude on individual rights and on state prerogatives to a degree unprecedented in the United States. (Remember that the U.S. Supreme Court held in Prigg v. Pennsylvania that the Personal Liberty Laws—enacted by northern states in an attempt to resist the federal Fugitive Slave Act—were unconstitutional. So much for states rights!)

Yet while the southerners wanted to give Washington greater power to insulate slavery in the years before the war, their Confederate Constitution did not create an effective superintending power over the states. (See David P. Currie’s fascinating article, Through The Looking-Glass: The Confederate Constitution in Congress,1861-1865, 90 Va. L. Rev. 1257 (2004)). That means that states would have come into conflict inevitably, in their handling of slavery, and particularly of fugitive slaves or interference by Northern Abolitionists (who would certainly have infiltrated the south in their efforts to lead slaves to freedom). Eventually, the Richmond government would have taken on greater powers to control slavery, and, I suspect this would inevitably have led to consolidation.

*-For those who may just be joining us, the reason I refer to “libertarian” defenders of the Confederacy as Doughfaces is that the term originally was used in the pre-war days to refer to “northern men with southern principles”—that is, northerners who would defend slavery and the southern cause. Today’s “libertarians” who defend the right of state governments to initiate force in defense of slavery are thus libertarian men with slaveocrat principles.

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