Libertarians Need Not Support the Confederacy

By Randal John Meyer
This article appeared on The Federalist on July 22, 2015.

Philip Magness authored an article in Newsweek entitled, “What Should Libertarians Think About the Civil War?” He claims the two “common interpretations” of the Civil War—libertarian support for the North or for the South—“stand out as particularly problematic.” He suggests that libertarians adopt two propositions, instead: “One needn’t be for the Union to be against slavery,” and “One needn’t be for the Confederacy to object to the North’s prosecution of the war.”

It is true that one need not support the Union to be against slavery and that one need not support Confederate states to object to war crimes—ask any non-American. Magness generalizes the moral considerations—slavery, war crimes, etc.—out from their historic context to avoid any “problematic” interpretation of who was right. In effect, his argument leaves the reader thinking nothing about the Civil War.

To accomplish this generalization, Magness completely conflates two ancient doctrines of warfare: jus ad bellum (justice in going to war), and jus in bello (justice in the conduct of warfare). However, the justification for war is distinct from the justifications for various acts of war. Some argue, for example, that “World War II was just, but Truman unjustly dropped the bomb.”

Both the Union and Confederacy committed war crimes and abused civil liberties during the Civil War. But from a libertarian perspective, the Confederacy had a worse case for its cause.

Neither Case Against the North Is Strong

When broken down, the jus ad bellum case against the North is objectively weak, and the jus in bello case against the North is not nearly as strong as Magness makes it out to be. To briefly address the jus ad bellum question, the case for the North is within libertarian philosophy. Southerners attacked a northern fort, and several million people lived in bondage in the Southern states in violation of the few universal laws of nature.

Regarding jus in bello, Magness considers the issues with libertarian moral philosophy in terms of supporting the North: “its indulgences in unrestricted warfare, suspension of civil liberties, centralization of power, or any of the other charges often made against the Union’s wartime cause or its outcome.” To be sure, the North let its generals perform what would today be called war crimes, and that is morally repugnant.

Yet, the South’s actions were hardly better—Camp Sumter, the Fort Pillow massacre, the Shelton Laurel massacre, and the Centralia massacre are just a few examples of the South’s violations of the customary laws of war. Reprisals and abuses were common on both sides; the jus in bello case is largely a wash on this issue.

Magness touches on the “suspension of civil liberties,” yet the only civil liberty he mentions in discussing the North is President Lincoln’s 1861 habeas corpus suspension. In any event, Congress ratified both this and a subsequent suspension in 1863, curing any constitutional defect. Any arguable jus in bello defect here is negligible. Moreover, the South denied the habeas corpus rights—and many other rights—of its millions of slaves for the entire war.

The South Used States’ Rights as a Façade

Magness also discusses the “centralization of power,” or the “dramatic weakening of the constitutional federalism laid out in 1787.” Leaving aside the “dramatic weakening” that Southern officials accomplished by seceding, this claim touches on two issues: federal power and states’ rights. Federalism changed, and federal power expanded once the Civil War Amendments were passed—but in a libertarian direction.

Finally, individuals could appeal to the federal government for protection against their own state’s abuses—against “grassroots tyranny,” as Clint Bolick has put it. The attack on civil liberties and state power that libertarians should worry about began in the Progressive Era, was constitutionalized by the New Deal Court, and continues to this day.

Moreover, as discussed in an article Jared Meyer (no relation) and I published in The Federalist, Northerners were the actual defenders of states’ rights. The Fugitive Slave Act of 1850 impressed northern citizens into southern slave-catching gangs. The Southern response to Northern assertions of states’ rights was to dispatch federal marshals and to enforce the offensive federal law against objecting states. The “state right” that the Confederacy was defending was that of its citizens to reclaim human “property” that fled the state.

When it comes to taking a moral view of the Civil War, libertarians cannot, with real intellectual force, argue that the North loses the jus ad bellum moral case. One can condemn the unjust actions of individuals like Gen. William Tecumseh Sherman or Lt. Gen. Nathan Bedford Forrest. Conflating injustice in carrying out the conflict with justice in entering the conflict gives growing room to veiled southern apologia. Libertarians cannot ignore the reality that their philosophy implicates: The South was wrong to wage war.

Randal John Meyer is a legal associate at the Cato Institute.