The Atlantic Gets It Wrong, Again

I don’t have time to detail everything the piece in question gets wrong, because it’s a lot. I’m sure this will be fodder for Abbeville posts for a long time, so I’m going to focus on the Constitutional issues.

Stephanie McCurry writes:

“In late February 1861, in Montgomery, Alabama, the seven breakaway states formed the C.S.A.; swore in a president, Jefferson Davis; and wrote a constitution. That constitution aimed to perfect the original by dispensing with all the issues about slavery and representation that had plagued political life in the former U.S. The document recognized the constituent states as sovereign entities (though it did not confer on them the right to secede, confirming Lincoln’s point that no government ever provides for its own dissolution). It put the country under God and mandated a one-term presidency, of six years. It purged the original of euphemisms, using the term instead of in its three-fifths and fugitive-slave clauses. It bound the Congress and territorial governments to recognize and protect “the institution of negro slavery.” But the centerpiece of the Confederate constitution—the words that upend any attempt to cast it simply as a copy of the original—was a wholly new clause that prohibited the government from ever changing the law of slavery: “No … law denying or impairing the right of property in negro slaves shall be passed.” It also moved to limit democracy by explicitly confining the right to vote to white men. Confederates wrote themselves a pro-slavery constitution for a pro-slavery state.”

Claim One: Secession was denied to member states of the CSA

This is a big deal, if true. Afterall the whole point of secession was secession! If the CSA framers left the USA and then denied their members that right, well that would be downright silly. Turns out there’s some very good reasons the CSA Constitution didn’t explicitly grant the right of secession, and unsurprisingly they’re based in the very political philosophy that wokesters like McCurry are completely ignorant of.

Marshall L. DeRosa wrote THE book on the CSA Constitution and here is what he had to say about this:

“The Question naturally comes to mind, if the CSA was committed to a states’ rights doctrine, especially in light of the historical developments of the antebellum period, why did the states not expressly constitutionally mandate a state’s right of secession? The answer to this question is threefold. First, the framers of the CSA Constitution contended that they were seceding on behalf of the US Constitution, and not because they were opposed to its principles…Their affinity for the US Constitution included the understanding that it did not deny the right of secession but implicitly protected that right as a prerogative of state sovereignty. They claimed it was fallacious construction that had cast doubts on the right of secession. To draft their Confederate Constitution with the expressed right of secession would, it was claimed, be yielding to the Northern interpretation of the US Constitution that if such a right is not expressly granted, it does not constitutionally exist. This they were not about to do. Second, the seven Southern states that had initially seceded from the Union had the practical problem of attracting the variable border states into the Confederacy. Virginia was especially reluctant to join a confederacy lacking a viable central government. To mandate constitutionally the right of secession would give the appearance of a loose league of disparate states held together by a feeble central government, not destined to endure…Consequently, the CSA framers decided to make the right of secession constitutionally implicit by explicitly recognizing the “sovereign and independent character of the States,” thereby providing the central government with the appearance of viability that otherwise might be lacking. And third, and most importantly, the CSA Constitution has a covenant component, establishing a central government held together by the consent of good faith of its members, not by coercion. In other words, it is a voluntary association grounded in a transcendental order. In this context, “a covenant differs from a compact in that its moral dimensions take precedence over its legal dimensions. In its heart of hearts, a covenant is an agreement in which a higher moral force, traditionally God, is either a direct party to or guarantor of a particular relationship. Whereas, when the term compact is used, moral force is only indirectly involved.””

So claim one is absolutely false, and it’s false for the same reasons that Lincoln was wrong. The member states of the USA had, and still have, every right to leave the Union. McCurry is simply begging the Lincolnian question when she writes “it did not confer on them the right to secede, confirming Lincoln’s point that no government ever provides for its own dissolution.” They didn’t need the right to secede conferred on them anymore than an unborn baby needs the permission of SCOTUS to be alive. They had it already.

Claim Two: It made black slavery legal forever.

This claim would be humorous, if it weren’t concerning such pernicious subject matter, because the Lincoln backed Corwin Amendment (which is still technically a proposed amendment to the US Constitution) would’ve done something similar. Pretty much everything McCurry tries to pin on the CSA can be justifiably said of the USA as well, aka speaking out of both sides of your mouth.

But it would still be a big deal if the CSA tried to make black slavery an indissolubale part of its political structure. Especially if the CSA was predicated on a transcendent moral order, a Covenant under God not man.

It is very clear the CSA Constitution protected the movement of slaves within the CSA, the right to own black slaves, and also denied the ability to import slaves. But we must remember that the CSA was attempting to recapture the true Federalist vision of the Founders. That means that the constitution of the CSA applies to the Confederacy, not the states. So when McCurrry, and many equally ignorant people over the last century and a half, have tried to make the claim that it would be impossible to outlaw slavery within the CSA they are simply mistaken. Nothing in the CSA Constituion would prohibit Alabama from outlawing slavery. It would simply mean that if Alabama did outlaw Slavery and say Florida didn’t that Floridian slavery was still recognized in Alabama. While that would be hopefully abhorrent to Alabamians, that’s the nature of true Federalism. California can kill as many babies as he wants and Tennessee should have the ability to make baby killing illegal. That’s real Federalism. Live and let live.

As DeRosa writes: “So Utah, for instance, could constitutionally permit polygamy because the Confederate Constituion is silent about that. It is silent, as well, about a wide range of issues such as the status of slavery within a state. In short the CSA Constitution restricts the Confederate government, not the states, unless it explicitly states otherwise, as it does regarding bills of attainder, ex post facto laws, the impairing of the obligation of contracts, and titles of nobility.”

The political fallout from this would’ve likely been that slavery become illegal, peacefully, over the next several decades in the South. But they were not allowed to leave. If they had left the Northern Jacobin abolitionists would’ve been removed from the equation allowing the South to deal with the slavery question sans puritanical terrorists or Federal tariffs.

In his Magnum Opus “Roll, Jordan, Roll” Eugene Genovese makes it clear that the Southern slave holding ideology was increasingly unstable legally. Over the course of the decades leading up to the War for Southern Independence the various Southern governments continually granted more and more rights and privileges to the slaves, because they clearly saw them as people endowed with natural rights but denied political rights, and conversely they sought to conserve black slavery. In order to keep their slaves “happy” they accommodated them in various ways, and the slaves kept the ground they had gained incrementally. The rights they were denied were seen as increasingly more absurd and the paternalistic ideology was remarkably shaky by the time the war came.

In other words not only is claim two false, it’s deeply unfair to the true history of both black and white southerners, who if left to their own devices would’ve continued to create a better society. And that society would’ve almost certainly avoided the Northern doctrines of segregation and Jim Crow.

Claim Three: It limited democracy to white men.

Democracy should be limited. McCurry, and virtually everyone at The Atlantic, are what Libertarian economist Bryan Caplan calls Democratic fundamentalists. Their religion is democracy. But democracy is terrible. It logically leads to demagoguery, which is something everyone hates. Historical Fasicsm, something else that everyone claims to hate, was democratic. Communism has always claimed to be democratic. Political participatory democracy is highly overrated, especially on the nationalist scale.

That being said, voting rights restricted to such a small class as white men, is clearly disturbing. But that was also the case in the USA at the time, so I’m not sure what point she’s even trying to make.

Technically claim three is therefore true, but it actually brings to light one of the few genuine problems with the CSA Constitution. The Confederacy actually took away the right of the States to convey citizenship. In Antebellum America you were supposed to be a citizen, if you were a citizen at all, of your State and then your State was a member of the United States. Lincoln and his friends at the Atlantic deny this, and sadly so did the CSA. This was what really made the Dred Scott decision so constitutionally heinous, it denied the right of the States to decide who was and wasn’t a citizen and made the road to emancipation more difficult.

This is the best path of attack against the CSA. But unfortunately it isn’t open to people like McCurry because she assumedly thinks that the incorporation of the Bill of Rights onto the citizens of the United States, unilaterally by SCOTUS, was the greatest moral victory in US history. In other words the most objectionable thing about the CSA from a traditionalist originalist perspective has become the nationalist law of the US.

Consider an America where states and not the Federal government conveyed citizenship. What objection could California have to a Donald Trump presidency under such a system? Blue states could decide that 12 year olds should have the right to vote, heck they could even decide that transgender people get to vote twice! The whole illegal alien controversy would probably go away, because New York and all the Blue states could do what they want with immigrants.

The irony that doubling down on the nationalist legacy of Lincoln just makes us all the more miserable is both delicious and disturbing, and the fact that the CSA technically did it first makes think pieces like this from the Atlantic borderline ludicrous.

You might also enjoy these articles...