Written by Greg Kent
All the recent fuss about public display of the Confederate Battle flag is a bit surprising. After all, the flag didn't make the Charleston shooter commit those murders. It seems like long-pent-up rage against the Confederacy has been expressed from liberals, blacks, and even some Republicans. The current controversy makes this is a good time to examine what happened under the battle flags that waved over the soldiers’ heads during the Civil War. It is true that some of what occurred during the Civil War offends modern sensibilities, but most people really don't really understand what happened during the War. Remedying this requires a bit of a history lesson. The Official Records of the War contains some interesting anecdotes that are worth studying for the insights they provide. The assortment of racist offenses recorded in those records is quite surprising.
Racist Practices During the Civil War
A Major General in the Deep South issued orders requiring the “continuous and faithful service, respectful deportment, correct discipline, and perfect subordination shall be enforced on the part of the negroes by the officers of the Government.” This same Major General issued additional orders forbidding “plantation hands” from moving from one place to another. He also authorized the Army provost-marshal to suppress the “indolence, insolence, and disobedience of orders” by those laborers and to punish them for “stubborn refusal of duty.” Certainly most people today would be offended by that official racist policy of using the army to bring about the “perfect subordination” of “the negroes.” Many also may be upset that soldiers’ bayonets replaced the overseers’ whip to force the black laborers to work the plantations.
It is perhaps understandable why black people today would take offense at that Major General’s flag. His flag still inspires many people today. That flag flies today in many public places, even from flagpoles on government property.
The moral question of the day it seems is whether that flag should still be flying. For those who are worked into a frenzy to see that flag purged from public expression, perhaps it would be better to pause for a moment’s thought. You see, the flag under which that Major General fought was not the flag you likely think that it was. It was Old Glory, the Stars and Stripes, the Star Spangled Banner. And the Major General who issued such racist orders was a Union General, Nathaniel Banks of Massachusetts. His orders were about controlling 50,000 so-called “freedman” and forcing them to work on the plantations along the Mississippi valley after Union troops occupied the region.
The orders of General Banks make things a bit messy when it comes to questioning the moral legitimacy of flags. If openly racist policy warrants removing the flag from public view, then the Yankee flag shouldn’t see the light of day either.
Things get even messier because the situation with General Banks is far from an isolated case. On the other side of Union-occupied Confederate territory, along the Carolina coast, the United States Army wasn’t concerned about the plantations. Although black men would often flee into the woods, the US Army was busy capturing them and forcing them to join the ranks. The report of one Union officer charged with gathering new recruits among the newly freed slaves was typical: “The negroes will not go voluntarily, so I am obliged to force them.” A Yankee government official reported that “this conscription, together with the manner of its execution, has created a suspicion that the Government has not the interest in the negroes that it has professed, and many of them sighed yesterday for the ‘old fetters’ as being better than the new liberty.” Another observer on the Carolina coast reported having overheard some freedmen “contrast the present state of things [behind Union lines] with their former condition to our disadvantage. This rude separation of husband and wife, children and parents, must … remind them of what we have always stigmatized as the worst feature of slavery.”
A report to Secretary of War Stanton back in Washington noted some additional problems with how blacks were treated in the Union army in occupied South Carolina:
Several occurrences had led [the colored troops] to doubt our good faith, who professed to come as their deliverers. They were fully aware of the contempt, oftentimes amounting to hatred, of their ostensible liberators. They felt the bitter derision, even from officers of high rank... I found the prejudice of color and race here in full force, and the general feeling of the army of occupation was unfriendly to the blacks. It was manifested in various forms of personal insult and abuse, in depredations on their plantations, stealing and destroying their crops and domestic animals, and robbing them of their money. The women were held as the legitimate prey of lust... There was a general disposition among the soldiers and civilian speculators here to defraud the negroes in their private traffic, to take the commodities which they offered for sale by force, or to pay for them in worthless money... When they were invited to enlist as soldiers they were promised the same pay as other soldiers; they did receive it for a time, but at length it was reduced and they received but little more than one-half what was promised.
Racism was also rampant in the tasks assigned to black troops. United States General Schofield ordered that “colored troops” be used “to relieve the white troops from duty where they would be exposed to disease.” General Ulysses S. Grant also clarified that he did “not want white men to do any work that can be possibly avoided during the hot months.” (By the way, when General Grant’s wife Julia visited him in the Army camp, she said that she “nearly always” was accompanied by one of her four slaves. Mrs. Grant’s slaves, except the one who ran away while traveling back from a visit to the General, were kept in bondage for the duration of the war.)
The Union even mistreated blacks that joined the armed forces. By law, blacks were paid 30% less than white soldiers (though eventually the Union government granted equal pay). Black soldiers also received medical care that was far worse than that given to white soldiers. Inferior care contributed to the high number of deaths among enlisted blacks, even though they faced far less combat than whites. The mortality rates for diseases were 3-4 times higher for blacks due to inadequate care.
One of the saddest stories about how blacks were mistreated under the United States flag is told by Jim Downs in his recent book “Sick from Freedom.” Joseph Miller, a runaway slave, fled to Union lines with his family in late November 1864. He enlisted in the Union army after being promised that his family would be provided with food and shelter. Within days, the Union army broke that promise. An armed guard, with threats that he “would shoot the last one of them,” forced Mrs. Miller and her 4 children to leave. With no place the go as winter came and no food available to them, the children began to die off. At the end of 6 weeks, the whole family (including Joseph) had died. Downs is very clear – this unfortunate family died because the United States army failed to fulfill its promise to provide the basic necessities of life. Such promises were kept only if made to white people, while many blacks were betrayed by those serving under the United States flag.
So if all of this rampant racism happened under Old Glory, why the animosity against the Confederate battle flag? If today’s unforgiveable sin is racism, then certainly the United States had blood on its hands too. It would seem that the sins of one side are glossed over and almost completely forgotten. Since the winning side writes the history books and dominates the culture, this is not entirely surprising.
Slavery: A Joint Responsibility of Both North and South
Some of the antagonism toward the Confederate flag may arise because people blame the Confederacy for slavery. Such a charge is neither rational nor historical. Slavery existed for 88 years under the Stars and Stripes, and for less than 5 years under the Confederate flag. When the American Revolution began, slavery was legal in all of the states, and in fact slavery had a long history going back many decades both below and above the Mason-Dixon line. The first Anglo-American government to authorize legal enslavement of black people was Massachusetts, where slavery was legal for over 140 years (1641-1783). Among the original 13 states, slavery was legal in Virginia and Carolina for 200 years (1660s-1860s), and for exactly the same period of time (1660s – 1860s) in the northern jurisdictions of Maryland and New Jersey. (Yes, you read that correctly—there were still slaves in New Jersey when the Civil War broke out.)
Yankee Connecticut and Massachusetts established the first fugitive slave agreement between jurisdictions in the New World when the New England Confederation was agreed upon in 1643. In Connecticut, legally-sanctioned slavery existed for 200 years (1643 or 1650 through1848). To put this into perspective, slavery has been legal in Connecticut for over half of its total existence, from its founding in 1636 until today (2015). It will take another twenty years until Connecticut will have been “free” longer than it was a “slave” jurisdiction. Just before the American Revolution, 1/4th of white men in Connecticut were slave-owners, exactly the same percentage of white households in Virginia who were slave-owners just before the Civil War broke out. Keeping a long-term historical perspective makes it clear that slavery was not a distinctly southern institution, but an American institution affecting both northern and southern states. Although acknowledging northern involvement in slavery is inconvenient to a one-sided view of history that blames only the South, all of the original 13 states participated in legal slavery for a long period of their history.
The general public is likely under the impression that the Civil War started because the Confederacy was determined to preserve and prolong slavery while the Union was firmly opposed to any preservation of slavery. Although slavery was a key factor in exacerbating the drift between North and South, it is simply not true that the North sought to end slavery in 1861 while the Southern states sought to prolong it. That is way too simplistic – history is always messier than we might like. In reality, both sections in 1861 sought to preserve slavery in the states where it existed already.
The Union was quite committed to allowing slavery to exist in the states. It is common knowledge that the 13th Amendment of 1865 abolished slavery. Few people know that an earlier proposed 13th Amendment would have done exactly the opposite. Just before the War, the official policy of the Union was to enshrine slavery in the Constitution as a right reserved exclusively to the states. In 1861, both houses of the United States Congress passed a Constitutional amendment that would have prevented federal law from abolishing or interfering with slavery in any State. Moreover, it would have also prohibited any future amendment to the Constitution to allow Congress to touch slavery. Abraham Lincoln, who instructed his transition team to introduce the idea as a peace gesture before his inauguration, publically supported this amendment. Lincoln considered the amendment an “explicit and irrevocable” guarantee that the Federal government could never interfere with slavery in the states. This amendment, if it would have passed, would have precluded the abolition of slavery in 1865. Protection of slavery in the states would have been one of only two clauses of the Constitution that could never be touched by future amendments. Even though the proposed amendment provided the strongest possible support for slavery, it was supported by majorities in the North, but the Deep South states were not persuaded to abandon secession. That fact alone seems to disprove the simplistic idea that the North was committed to ending slavery and the South was committed to supporting it.
The pro-slavery amendment passed the Congress (without the seceded states) and, with Lincoln’s support, was being ratified by Northern states until events were overtaken by the coming of the War. Meanwhile, the Confederate Constitution also contained a provision to deny the Southern Congress the power to interfere with slavery, but it did not make this pro-slavery provision permanent and irrevocable. This is exactly what the United States proposed amendment intended to do – with the support Lincoln, 2/3rds of the US Congress, and states such as Ohio and Illinois. In light of this, there is no cause to impugn the Confederacy and denigrate its battle flag simply because slavery was continued as it had existed since the founding of the United States. The continuation of slavery, in fact, is significantly less than what the United States conceded to the South at the very beginning of the Civil War.
Perhaps some people are angry about the battle flag because of a perception that the Confederacy brought African men into slavery. Certainly, everyone today rightly condemns the African slave trade that brought slaves here in horrible conditions that many didn’t survive. The Confederacy, however, did not bring additional slaves from Africa. Actually, it would have been impossible for any slave trader to fly a Confederate flag because the slave trade was forbidden from the very beginning of the Confederacy. The 1861 Constitution of the Confederacy explicitly forbade the slave trade and expressly required the Congress to pass laws to prevent it. The truth is that any North American ships that were involved in the African slave trade flew the flag of the United States from their masts. In contrast to the Confederacy, the United States Constitution prevented the Congress from interfering with the slave trade for 20 years, and even then, it only permitted Congress to forbid it. The slave trade was suspended by U.S. law, but it was not prohibited by the Constitution.
It is also worth noting that U.S. involvement in the transatlantic slave trade did not end in 1808. Between 1820 and the 1840s, United States ships were the primary traffickers of African slaves anywhere in the world. Specially-design slave ships hailed from New England ports and delivered their cargo to Cuba, Brazil, and other foreign ports on this side of the Atlantic. If the international slave trade in the nineteenth century had a flag, it was the United States flag, which, when flown from the mast, protected a ship from interference by the British and other nations seeking to end the trade. If the Stars and Bars (the civil flag of the Confederacy) had been the flag of the international slave trade, much ado would certainly be made of that fact. Although Old Glory was the flag of the slave trade that condemned tens of thousands of Africans to death and difficulty, few disparage that flag today as a symbol of racism and oppression. The use of a double standard seems undeniable.
Understanding the Emancipation Proclamation
There is also significant confusion about the Emancipation Proclamation, which might explain some of the confusion about the flag. The Emancipation Proclamation accomplished must less than most people believe. At that time it was issued at the beginning of 1863, there were 500,000 slaves within the border states of the Union and an additional 350,000 slaves within Union-occupied territory of the Confederacy. Of the 850,000 slaves that were under the control of the Union, the Proclamation freed only 50,000 – slaves along Mississippi Valley (who were practically re-enslaved by General Bank’s program of “perfect subordination”) and slaves along the Carolina coast (who were rounded up and forcibly conscripted into the Union army). This raises the question about whether those newly “freed” slaves were really free after all. Slaves in the Union Border States and large sections of already-conquered Southern territory were exempt from the Emancipation Proclamation altogether. Overall the impact of the Proclamation was less than is commonly thought. By the end of the war, only about 15% of slaves in the Confederate states had been freed by the Union armies.
Furthermore, at its core, the Emancipation Proclamation was primarily a military act, not a principled action against slavery (e.g., the “act of justice” rhetoric was added by the cabinet as an afterthought). The Proclamation itself says that it was a “fit and necessary war measure for suppressing rebellion” that was issued by “virtue of the power of the commander in chief” acting “upon military necessity.” There is a self-serving aspect to Union emancipation policy that few people today seem to notice. Late in the war, the Confederates had their own emancipation program for Southern slaves. Like the Union, the Confederates sought to create military units of armed freed slaves to help the Confederate war effort. The South acted too slowly for this emancipation program to achieve much – the war ended just as the program was starting-up. Though both Lincoln’s program and the Confederate’s were implemented as military measures, Lincoln’s is celebrated in the public mind, while the Confederates are condemned as hypocritical.
During the war, Lincoln offered to abandon a policy of emancipation if the South would simply lay down its arms and be restored to the Union. At the Hampton Roads Conference in February 1865, Lincoln told Confederate officials that the Emancipation Proclamation was a “war measure” that would become “inoperative” as soon as hostilities ceased. No additional slaves would be freed. Although Lincoln was adamant that those slaves that had already been freed (which he thought was only about 200,000) must remain free, he was open regarding the status of the rest of the slaves. He said that courts would decide the matter. Secretary of State Seward informed the Confederates about the proposed 13th Amendment to abolish slavery. He suggested that the Amendment was a war measure and probably “would be abandoned” if the Southern states pursued peace. He added that the Southern states could oppose and defeat the Amendment if they stopped fighting and rejoined the Union. Lincoln did not correct Seward’s representation but added an additional option: the Southern states could ratify the 13th Amendment prospectively to defer the effective date of emancipation until sometime in the future. This would avoid the “evils of immediate emancipation,” Lincoln said. Lincoln seemed willing to sacrifice the fate of 2 million slaves to end the war quickly and restore the Union.
Though perhaps surprising to modern readers, this was precisely the official policy of the United States during the Civil War. In his inaugural address, Lincoln reiterated his longstanding position: “I have no purpose, directly, or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.” Even after he had determined to issue the emancipation proclamation in late summer 1862, Lincoln explained the policy of his administration to the New York Tribune:
“My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I don't believe it would help to save the Union.”
This policy never changed during the duration of the war. In August 1964, Lincoln denied that the war was being fought for abolition—a misrepresentation that he blamed on his enemies. To clarify his position, Lincoln affirmed that the war “is and will be carried on so long as I am President for the sole purpose of restoring the Union.” Lincoln prioritized the restoration of the Union over the elimination of slavery or the fate of black men. This is why he supported irrevocably supporting slavery in the Constitution back before the War started and why he was willing to suspend emancipation in order to hasten the end of the war.
Regarding its own slaves, United States policy during the War was more limited. In many respects, during the early years of the Civil War, it was “business as usual” for slaves in the states that did not secede. Lincoln’s newly appointed Marshall continued to allow masters to use the Washington DC jail to punish their slaves and hold them temporarily for sale in 1861 and 1862. The Fugitive Slave law was still being enforced by the government to return run-away slaves to their masters in Maryland until the summer of 1863. In terms of emancipation, slaves of “disloyal” masters who had helped the South and slaves that joined the Union army (and then very late, their families) were emancipated. The underlying motive of this policy was to help the war effort, just like Emancipation Proclamation did.
Lincoln’s Policy Toward Blacks: Gradual Emancipation, Exclusion, and Colonization
Two years into the War, Lincoln proposed to Congress an emancipation scheme for the Border States where masters would be compensated for the loss of their slaves. Lincoln’s policy did not require that slaves be immediately set free. Instead, he envisioned a gradual emancipation process where slavery would exist until 1900 – that is, for another 40 years, a length of time that Lincoln thought would be beneficial for both races. Linked with gradual emancipation was the policy of colonization to remove the newly free blacks from the United States. As Lincoln said in his Second Annual address to Congress, he “strongly favored colonization.” In 1862, he told a group of black men at the White House that “it is better for us both … to be separated” because “there is an unwillingness on the part of our people, harsh as it may be, for you free colored people to remain with us.” “Gradual emancipation and deportation,” were the key elements of Lincoln’s policy. He knew that Northerners were concerned that “freed people would swarm forth and cover” the Northern states. The obvious solution was for the freedmen to work with their former masters “till new homes can be found for them in congenial climes and with people of their own blood and race.” Lincoln also stated that the Northern states could decide “whether to receive them” or not.
The joint policy of compensated emancipation and colonization that Lincoln advocated in his Second Address to Congress was his consistent policy goal throughout 1862 and beyond. The exact same policy was enacted in April 1862 when slavery was abolished in Washington DC. Besides funding to reimburse masters, the Act that Lincoln signed also included $100,000 to pay newly emancipated slaves up to $100 to “aid” in their “colonization and settlement ... beyond the limits of the United States.” Lincoln even included a reference to colonization in his preliminary emancipation proclamation in September 1862. Besides committing himself to a policy of emancipating slaves in the “rebellious” states, Lincoln promised that “the effort to colonize persons of African descent … will be continued.” In fact, Lincoln pursued this policy of removing freed black people from the United States throughout most of the war until at least 1864, and possibly even into 1865, as Professors Magness of George Mason and Page of Oxford have shown. The Lincoln administration sought to establish colonies of freed blacks in Panama, Haiti, Liberia, British Honduras, British Guiana, and Suriname. After Congress had repealed the funding for the colonization program, Lincoln sought a legal opinion from the Attorney General in late 1864 that would allow him to retain his Commissioner of Emigration to continue to arrange for the deportation of freed black people.
That Lincoln pursued such racist policies is not surprising since he suggested as much in his senate campaign in 1858. At Ottawa, Lincoln insisted that the “crisis” would be resolved even if slavery would exist for another “hundred years”, as long as it was headed toward “ultimate extinction.” The Lincoln who was okay with slavery lasting until 1960 is not the Lincoln that most people think they know. At Carlinville, Lincoln explained his understanding of the rights of black men. “Negroes have natural rights … as other men have, although they cannot enjoy them here… No sane man will attempt to deny that the African upon his own soil has all the natural rights [the Declaration of Independence] vouchsafes to all mankind.” Accordingly, as president, Lincoln planned to send black people back to Africa, where their “natural rights” (which evidently were suspended while they were on United States soil) would apparently re-attach. To speak of natural rights that can’t be enjoyed is, of course, a meaningless self-contradiction. This helps to explain how Lincoln would claim the moral high-ground by pretending that the Declaration’s “all men are created equal” principle applied to black slaves, while at the same time saying things like this:
“I am not, nor ever have been in favor of bringing about in any way the social and political equality of the white and black races, that I am not nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will forever forbid the two races living together on terms of social and political equality. And inasmuch as they cannot so live, while they do remain together there must be the position of superior and inferior, and I as much as any other man am in favor of having the superior position assigned to the white race… I will add to this that I have never seen to my knowledge a man, woman or child who was in favor of producing a perfect equality, social and political, between negroes and white men…. If the State of Illinois had [the power to make a negro a citizen] I should be opposed to the exercise of it.”
In his ’58 senatorial campaign speeches, it became apparent that racism was underlying Lincoln’s policy regarding slavery in the territories, which Lincoln believed should be reserved for white people. In Alton, Lincoln said: “I am still in favor of our new Territories being in such a condition that white men may find a home—may find some spot where they can better their condition.” Lincoln sought this haven for “our own people” and for “free white people everywhere, the world over.” When Lincoln referred to “our own people who are born amongst us” he obviously was referring exclusively to white people. He even favored foreign whites over domestic blacks, free or slave. And Lincoln was not afraid to appeal to overt racism. At Carlinville, we warned his audience that “every white laborer will have occasion to regret [the extension of slavery into the Territories] when he is elbowed from his plow and anvil by slave niggers.”
Whenever he described exactly what so-called “equality” for black people looked like, Lincoln sounded more like an outright liar, a hypocrite, or a terribly-confused politician who got carried away with his own rhetoric than the “Honest Abe” of popular myth. Given the inconsistency and even incoherence that is obvious in Lincoln’s position, it is doubtful that his was the morally superior position. What is clear is that Lincoln’s philosophy of civil rights is less than impressive, and his policy was racist at heart. As President, he would have never thought of deporting white men, nor would he have affirmed a state’s right to bar white men from entry. Despite passing references to “equality,” Lincoln considered this type of mistreatment acceptable only for black people.
With this in mind, is it fair, is it right, is it reasonable to pour out such hate toward the Confederate flag? During the War, the difference between the sides wasn’t nearly as significant as many people think. If the Confederacy’s position of maintaining slavery was a horrible sin, then the United States was guilty of the same sin from its founding all the way through the first half of the War. If perpetuating an inherited slavery is viewed as a despicably racist act, then a policy of deporting newly emancipated slaves should equally be condemned. It certainly isn’t clear how Lincoln’s position is any less racist or offensive than slavery. It sends a message like this to the black man: “While you were a slave down south, you were somewhat useful to us. But now that you’re free, you are not welcome here and will be barred from entering our northern states. Just get on the boat and go away.”
It should be noted that Lincoln’s suggestion that Northern states could take action to protect themselves against free blacks was more than idle speculation. Northern States had a long history of placing discriminating restrictions upon free blacks. Some Northern states prevented blacks from owning property or testifying in court; some states restricted the education of blacks; and almost all states prevented blacks from voting. The most extreme form of discrimination enacted by several Northern states was blocking black people from even entering the state, as Lincoln suggested. The constitution of Oregon (adopted by almost 90% of the vote in 1857) provided that “no free negro or mulatto … shall come, reside, or be within this state … and the legislative assembly shall provide by penal laws … for their effectual exclusion from the state.” Even Lincoln’s home state of Illinois adopted a constitutional provision during the Civil War declaring that “no negro or mulatto shall immigrate or settle in this state.” This provision was adopted in 1862 with over 70% of the vote, and a similar provision to prevent blacks from voting passed with 85% of the vote. Northern states were already doing what Lincoln said they could do by barring blacks from entry.
The practice of racial restrictions by Northern states continued to occur even after the Civil War was over. In late 1865, ballot initiatives concerning black voting rights were on the ballots of 5 Northern states and territories. Even the euphoria of victory and the goodwill of a long-sought-after peace could not induce Northerners to be liberal toward the newly freed blacks. Most of the jurisdictions had very small populations of free blacks (less than 1-2%) that would have minimal impact on elections, but all voted against extending voting rights to free blacks. Fifty-five percent of the vote in Connecticut, Wisconsin, and Minnesota went against black voting rights. In the Colorado Territory the vote was 90% against, and in the District of Columbia over 99% of the vote was against granting black men the right to vote.
So, again, what is driving the outrage against the Confederate battle flag? The Southerners who fought under that flag did not introduce slavery to North America – that had been done generations beforehand. The Southerners who fought under that flag did not bring slaves from Africa here – New Englanders did. The Southerners who fought under that flag didn’t seek to give slavery irrevocable protection in the Constitution – but Lincoln and the US Congress did. The Southerners who fought under that flag did not promise freedom to slaves and then hold them by force under perfect subordination – but a Union Major General did. The Southerners who fought under that flag didn’t break their pledge to black recruits and then starve their families to death – but the Union army did all too often. The Southerners who fought under that flag didn’t speak double-talk about natural rights and then refuse to recognize them for black men – like Abraham Lincoln did. The men who fought under that flag didn’t seek to be completely rid of the black man by shipping him off somewhere else – but Abraham Lincoln did. The States who flew the Confederate battle flag did not seek to completely ban freed blacks from their territory – but several Northern states did.
Of course, after Abraham Lincoln’s death transferred power to the Radical members of his party. The Radicals did in fact bring about complete emancipation and then additional civil rights for black people. The Radical faction was driven by mixed motives: some genuine concern for black people, some desire for revenge against the South, and some self-interested concern to maintain political power. Which of those motives was primary was perhaps revealed as history unfolded. After it became clear that the Southern people would recapture their state governments from Radical control and Radicals were losing popular support in the North, the Republicans abandoned black people in 1876 in exchange for the Presidency. Despite the self-serving motives of the Radicals, many people feel that their achievements regarding civil rights are worth celebrating. Their subsequent accomplishments, however, should not mean that offensive behavior committed under the United States flag should be forgotten. Before, during, and even in some cases immediately after the Civil War, the official policy United States was tolerant and even supportive of the enslavement, subordination, exclusion, and/or deportation of black people.
Obviously, part of the broad problem is that most people are horribly ignorant of history and know only one side of it. (This is not particularly surprising, since only one side is taught in our schools and passed along through popular culture.) But the problem goes further than that. The public is inclined to forgive the racist sins of the North and of President Lincoln. If not completely forgotten, Union offenses are overlooked with leniency because these men are recognized as the product of their times. No such leniency or consideration, however, is ever offered to the South. Perceived Southern sins are never to be forgiven or overlooked. Rather the opposite occurs – the sins of Southerners are often exaggerated and put in the worst possible light, and the public is reminded of those sins over and over again so that they are never forgotten.
What the Civil War was All About
The facts of history are a bit more complicated and messy than people think. To use a hifalutin word, history is “nuanced,” especially when it comes to major controversies like the American Civil War. One thing, though, is clear: when compared to what the Union actually did (not what people think it did) during the War, Southerners have no reason to be ashamed of their battle flag. Although the case against the Confederate battle flag has little merit, it’s not enough just to point out why so many of our neighbors North and South are mistaken in being opposed to the flag. An affirmative case needs to be made to justify the flag. That is, an answer needs to be given of the question: why should the Confederate battle flag be flown today?
The conventional answers (like “heritage not hate”) are more defensive than affirmative. It’s not clear why some people’s heritage should be honored with a flag but not others. It also doesn’t ring true – it seems like there has to be more to it than that. Even more important, such an argument about heritage makes the battle flag seem like a historical artifact. Most historical artifacts are housed in museums and have little meaningful relevance to life today. That’s not a very compelling case for the flag. Is that really the best Southerners can come up with to defend the flag of their fathers?
Sadly, many Southerners and most Northerners have lost sight about what the Civil War was about. What was really at stake in that War? Many might say that slavery was at stake. Though slavery ended as a result of the war, it is inaccurate to say that slavery was at stake in the war. After all, the Union conceded express and irrevocable slavery rights to the Southern states, and the Southern states were still uninterested in maintaining the Union. As many Southern leaders understood, the constitutional protection that Lincoln offered for slavery would have made the United States the safest place for the southern states to be if their chief goal was to preserve slavery in perpetuity. Yet the South wasn’t interested in that protection, showing quite conclusively that something else was ultimately at stake in the Civil War.
At the cemetery at Gettysburg, President Lincoln tried to frame the Civil War as a conflict about the Union preserving self-government “of the people, by the people, for the people.” As H.L. Menken, that is great “oratory, not logic; beauty, not sense... It is difficult to imagine anything more untrue.” In no way did the South threaten or oppose the right of northerners to govern themselves, by themselves, and for themselves. The Southern states simply sought to leave the Northerners alone and to be left alone to rule themselves. Lincoln of course had it completely backwards – the Southerners were seeking to rule themselves, by themselves, and for themselves. It was the Union army that fought against the right to self-government down South. Menken’s critique of “the fundamental nonsensicality of the Gettysburg address” was surely right: “The practical effect of the battle of Gettysburg … was the destruction of the old sovereignty of the States, i. e., of the people of the States? The Confederates went into battle an absolutely free people; they came out with their freedom subject to the supervision and vote of the rest of the country.”
General Sherman was more honest and forthright about what the war was about: “I believe this war is the result of false political doctrine, for which we all as a people are responsible: that any and every people a natural right to self-government, and I would give all a chance to reflect and when in error to recant… Whilst I assert of our Government the highest military prerogatives, I am willing to bear in patience that political nonsense of slave rights, State's rights, freedom of conscience, freedom of the press, and such other trash as have deluded the Southern people into war… We are bound together as one nation by indissoluble ties, and … any interest or any people that set themselves up in antagonism to the nation must perish.” He went on: “All the people of our country, North, South, East, and West have been undergoing a salutary political schooling…. Can we whip the South? If we can, [we] have both the natural and constitutional right to govern…. [If] our armies … prevail over theirs… we have the natural right to demand their submission.”
Most Americans today (or at any time in our history) would find Sherman’s candid words repulsive. Sherman dismissed the right of self-government as a false error to be recanted and repudiated fundamental first amendment rights as nonsense, trash, and delusion. Such sentiment is so un-American that we would rather not think about it. Unfortunately, Sherman’s candor is closer to the truth, but many Americans would prefer to believe Lincoln’s version. A pleasant-sounding fantasy is easier to cope with a troubling reality.
All too often since the Civil War, our Federal government talks like Lincoln but acts like Sherman. Over and over again, the Federal government has taken away our liberty and our right to self-government. Our government ignores our natural and constitutional rights and demands our submission to its arbitrary will. A case in point is the recent same sex marriage case at the Supreme Court. Justice Scalia saw through the smoke screen when we wrote in his dissent “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
It’s about time that the people, who are supposed to be the supreme authority in our system of government, recognize that the biggest threat to our liberty is not the Russians, or the Chinese, or the Iranians, or ISIS – but our own Federal government. Restraining the Federal government has been a challenge from the beginning. Many of our greatest statesmen have wrestled with this challenge and struggle to find an answer. Speaking specifically of the Supreme Court, Chief Justice Roberts recently wrote about the same sex marriage ruling: “If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can?”
Roberts was bemoaning the fact that the Court cast aside judicial restraint, which he thinks is the key to avoiding the “error of converting personal preferences into constitutional mandates.” It’s surprising that Roberts was surprised that this would happen. The concept of judicial restraint is not only an oxymoron, it is also self-defeating. Judicial restraint is built on a false assumption (that the Supreme Court has absolute power to do what it wants) and a foolish assumption (that the Court can be relied upon to control itself). The inherent danger in such an idea is obvious to anyone who thinks about the philosophy of liberty. For the people to rely on the self-restraint of otherwise all-powerful governing officials violates every principle of separation of powers and every philosophy of liberty, as even school children know.
In ratifying the Constitution, the People did not agree to have our liberty depend on the good-naturedness of unelected, corruptible judges to show self-restraint. Thomas Jefferson spoke to the nonsense of relying on the goodness of our leaders to do the right thing: it is “a dangerous delusion” for us to allow “confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism -- free government is founded in jealousy, and not in confidence … [in] those whom we are obliged to trust with power.” For liberty’s sake, what we need is not judicial self-restraint; what we need is for a rival authority to restrain the judges. We the People did not agree to bow to the discretion of 9 (or 5) judges any less than we have not agreed to bow to the discretion of 535 legislators or the President. Citing Jefferson again: “The [Federal] government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.”
But if part of Chief Justice Roberts’ question is nonsense, the other part is profound: what can “inhibit” power grabs by the judiciary or the other branches of the Federal government? Southern history, indeed American history, proposes an answer to the Chief Justice’s question: the political doctrine of States’ rights is the only obstacle that stands a chance at restraining the abuse of power by the Federal government.
States’ Rights as the Primary Means of Restraining the Federal Government
From the beginning of the Republic, Southerner statesmen considered the challenge of how to keep republican government in-bounds so that it won’t descend into corruption and usurp the liberty of the people. Everyone understood that the solution entailed some form of checks and balances, but there were questions about designing a system of government where checks and balances are real constraints on arbitrary power. In the ratifying convention of Virginia, Patrick Henry criticized the Constitution’s three separate branches of government as inadequate to the task. He dismissed these as mere “checks on paper” that would not be sufficient to serve as real checks on the abuse of power. What Henry sought were “checks founded on self-love.” His point, which is all too clearly demonstrated today, is that when the supposedly self-checking parts of the system ultimately have overlapping interests, then the system of checks and balances breaks down and collusion (or at least less vigilant resistance) results. Checks and balances only work when there is rivalry based on self-interest that will prevent collusion and encourage vigilance. This, Henry said, “is the rock of political salvation” to preserve our liberty.
Henry reached the conclusion that “if there be a real check intended to be left on Congress, it must be left in the state governments.” However, Henry worried that the Constitution left the states too weak to prevail in their resistance against usurpations by the Federal government, which is why he opposed ratification. In Henry’s view, the deck was stacked against the states. Other Founding Fathers in Virginia, like James Madison, felt differently and were certain that “the state governments will counteract the [Federal government], and ultimately prevail.” Anticipating Henry’s concern about “real checks,” Federalist George Nicholas argued that “the state legislatures … will be a powerful check on [the Federal government]: every new power given to Congress is taken from the state legislatures; they will be, therefore, very watchful over them.” To prevent the “usurpation of the rights of the different state legislatures,” every attempt by Congress to “exercise any power not vested in them … would be successfully opposed by the states,” as the “experience of this state legislature” has shown.
The separation of powers doctrine, as originally conceived, by the Founding Fathers included the separation of state powers and federal powers as an integral part of the checks and balances necessary to preserve liberty. When James Madison introduced the bill of rights in Congress, he bundled together two clauses, one concerning the division of legislative, executive, and judicial powers and the other addressing the respective powers of the federal and state governments. The Federal government had “delegated” powers, while the states had all the remaining “reserved” powers. To Madison, the separation of state vs. federal power was just as important as the three separate branches of the federal government. The same was true for Thomas Jefferson, who used the terms “branch” and “department” sometimes to refer to the state vs. federal division of powers and at other times to refer to the legislative/judicial/executive division. Both types of separation of powers were important, but for Jefferson the state vs. federal division was preeminent, as we well see shortly.
Even Alexander Hamilton recognized this in his speeches to the New York ratifying convention. “Above all” the typical checks and balances we customarily think of (like free elections, three distinct branches of government, and two distinct houses of the legislature), Hamilton saw the “vigilance and the weight of the state governments” as “the most powerful obstacle” to preventing “tyranny and the subversion of our liberties.” In the Federalist Papers, Hamilton wrote that “the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.” Though Hamilton may have been disingenuous (being a monarchist at heart), this shows the type of government that he knew he needed to sell to New Yorkers to secure ratification.
Thomas Jefferson knew that “the true barriers of our liberty in this country are our State governments.” The Federal government is prone to “enlarging its own powers by constructions, inferences, and indefinite deductions,” which are “usurpations of powers” and ultimately “direct infractions” of the Constitution. To address this problem, Jefferson advised the states to “bind [the government] down from mischief by the chains of the Constitution.” The Constitution may be the chains, but unless the States act to “bind” the federal government, then the Constitution provides merely “checks on paper” (as Patrick Henry would say) that won’t accomplish anything. To Jefferson, binding the federal government meant that the states should declare any usurpations “void and of no force” and should “take measures” to provide that these acts shall not be “exercised within their respective territories.” A simple declaration or protest with no corresponding action would be insufficient.
James Madison felt the same way as Jefferson. Madison wrote that it is the duty of the state legislature “to watch over and oppose every infraction” of the Constitution. Should the federal government overstep its bounds, then “the States … have the right and are in duty bound to interpose for arresting the progress of the evil, and for maintaining … [their] authorities, rights, and liberties.” Though the state legislature has the duty to guard the liberties of the people, the State (and more specifically the people of the State) is “clearly the ultimate Judge of infractions” of the Constitution, which itself was made by the authority of the people of each state assembled in convention. Just like Jefferson, Madison urged two remedies if the federal government “exercises a power not delegated by the Constitution:” declaring that those actions are “unconstitutional and not law, but utterly null, void, and of no force or effect” and taking “necessary and proper measures” to maintain “unimpaired the authorities, rights, and liberties reserved to the States respectively, or to the people.”
According to Henry, Jefferson, Madison, and even Hamilton, the best hope for preserving liberty in our Republic is for the state governments to interpose against Federal abuses of power. Serving as guardians of the rights of their people is not only the right but the duty of the states. This was a duty that states on both sides of the Mason-Dixon line embraced in the first decades under the Constitution. The people of the founding generation decisively embraced Jeffersonian ideas and elected Jeffersonian Virginians to the Presidency for 24 consecutive years, essentially killing the Federalist party that supported a strong, centralized government with weak, compliant states. With the dramatic shift in political power, Federalist New England zealously resisted the policies of Jefferson and Madison with the same zeal for States’ rights. Echoing Jefferson and Madison from a decade earlier, the Massachusett’s legislature declared that “the people have not sent us here to surrender their rights but to maintain and defend them” and “while this state maintains its sovereignty and independence, all the citizens can find protection against outrage and injustice in the strong arm of the state government.” Connecticut expressed similar sentiments: “It becomes the duty of the Legislatures of the States, in such a crisis of affairs, vigilantly to watch over, and vigorously to maintain, the powers not delegated to the United States, but reserved to the States respectively, or to the people; and that a due regard to this duty, will not permit this Assembly to assist, or concur in giving effect to the aforesaid unconstitutional act.” And Rhode Island: “It is the duty of this General Assembly as the organ of [the sentiments of the people of this state] and the depository of their authority, to interpose for the purpose of protecting them from the ruinous inflictions of usurped and unconstitutional power.” Thus it can be seen that States’ rights as a defense against Federal encroachments was not strictly a Southern doctrine.
Over time, though, most of the states that were zealous for liberty were so busy protesting the abuses of the federal government that they neglected the second action called for by Jefferson and Madison: that is, taking active measures to preserve liberty. Unfortunately, protest without action amounts to nothing more than another of Henry’s “checks on paper” that don’t achieve anything. Another Southern statesman, John C. Calhoun, recognized this. “Universal experience, in all ages and countries … teaches that power can only be restrained by power, and not by [the minority’s appeal to] reason and justice; and that all restrictions on authority, unsustained by an equal antagonist power, must forever prove wholly inefficient in practice.” Calhoun was not calling for violence against the Federal government, as is evident by his diligence to find a peaceful resolution to the nullification crisis. He was simply stating, like Jefferson, that the “chain” of the Constitution does no good unless the States actually use that chain to “bind” an out-of-control federal government. The Constitutional restraint on the power of the Federal government is a dead letter, simply words on a page, unless the States interpose their power to resist Federal encroachments on the rights of the people.
For too long, freedom-loving people have been satisfied with “checks on paper.” Sure, we protest and publish more paper. We enjoy Scalia’s dissenting opinions (eloquent as they are), we write blogs and read political columns, and we listen to rants on talk radio. We elect Republican Congressional majorities. We fight to get some of “our guys” on the Supreme Court. Some of our states even issued 10th Amendment resolutions against the power-grabs of the Feds. The sad reality is that these actions have had no effect on preserving our freedom and restraining the Federal government. Nothing substantive has changed, and the Federal government continues to overstep its bounds and assault our liberty.
Are we surprised? Our fathers who founded this Republic told us what the “true barrier” is that protects our freedom, but even freedom-loving people hesitate and too often reject the one clear solution to our problem. As long as Republicans cling to “Honest Abe’s” partisan fantasy about the Civil War, there is little hope that anything will change. It’s about time we were honest about Abe, recognize that he was on the wrong side of liberty, and acknowledge that States’ rights are fundamental to the checks and balances that stabilize the system. But will we do it? What is lurking in the background, as everyone knows, is the fear of being called racist. The enemies of liberty show no qualms about recklessly throwing around the charge of being racist. So-called progressives use the charge of racism just as effectively as a master’s whip (or General Bank’s bayonet) to keep us in our place – submissive to a Federal government that does what it wills, or more specifically, what they will.
What our Republic needs is for some principled statesman to have the courage to speak the truth about States’ rights under our system of government. This means risking being called a racist in order to take us back to the wisdom of the past. We need some states to take action, to use their power, not just speak words of protest, to protect us from the abuses of the Federal government. In short, the States’ rights position is the way forward to freedom.
And this is why the Confederate battle flag matters. That flag is the symbol of States’ rights – about States using their power to resist a federal government that was exceeding its authority and violating the Constitution. Honorable men stood in the battlefield, organized by state, under that flag to serve as the ultimate power to resist and restrain unconstitutional power. This is what America has been about since the Declaration of Independence, though some misguided slogans have sought to suppress that fact. Jefferson’s Declaration dedicated our nation to the proposition that the powers of government are just only if they are derived from the consent of the governed, and that consent is given not by one great mass of people but the people of distinct states. It was not “one nation indivisible” that proclaimed independence, but “the united [lower case] States [upper case] of America,” who were seeking to become “Free and Independent States [plural].” The entity that declared its independence in 1776 was a “they,” not an “it.” ( Referring to the United States with plural pronouns like “them” and “their” is a practice carried forward in the Constitution, including the Emoluments clause, the Judicial Power clause, the Treason clause, etc. As constructed by our Fathers, the United States are really just the States united.) The battle flag embodies the spirit of American’s founding. This is a part of our heritage that we should cling to – Virginians, Southerners, freedom-loving Americans from every state and of every race.
It goes without saying that advocating States’ rights does not imply violence or a resort to arms – certainly not against individuals, but also not against the central government. Our Declaration of Independence makes it clear, as all Americans would agree, that force of arms is appropriate only under extreme and desperate circumstances. The American Revolution was fought only after “a long train of abuses and usurpations” had been steadily resisted by colonial authorities without success and the King had first resorted to arms. The Revolution was fundamentally defensive in character and resulted in a call to arms only after all other options had failed. (This was the Southern position in the later War as well. Though one might quibble about the first short at Fort Sumter, the only reason the South fought was because Yankee soldiers were “down here.”) In current times, no states are even trying to resist unconstitutional moves by the Federal government. It is about time the States started down a path of active but non-violent resistance.
States’ Rights in Practice: Calhoun’s Foresight
What might state resistance to unconstitutional Federal power look like? We know that Jefferson and Madison called for both protest and “taking measures” to protect the people. (Madison later waffled on this, as he had an unfortunate tendency to flip-flop when separated from Jefferson.) From a historical perspective, what those “measures” might be and what the process of state resistance looks like in practice is still a work in process. More than anyone else, John C. Calhoun had some good insights and proposed a solution.
Calhoun, extending the argument of Jefferson and Madison, noted several principles based on the Constitution itself. First, the existence of an amendment process in the Constitution implies that changes to the division of powers between states and the Federal government ought to be made expressly via amendment. Second, the supreme authority in the whole system is the people of the states composing 3/4ths of the Union. The people of the 3/4ths of the states are the only group authorized to change the division of powers (and, of course, they also established the Constitution in the first place). Third, on questions or gray areas regarding the distribution of powers, the Constitution creates a presumption in favor of the States. This is plain from the structure of the Constitution itself, in which the powers granted to the Federal government are specifically enumerated. The granting of specific powers implies that all other powers are not granted to the Federal government, and therefore must remain with the individual States. This implication is made explicit by the wording of the 10th Amendment. According to the 10th Amendment, the Federal government (in all of its branches) only has delegated powers – all other powers (i.e., any power not specifically delegated to the Feds) are reserved to the State governments and the people of the States. By the wording of that Amendment, State power is the default or presumptive position.
Calhoun then noted some practical observations about how our system of government actually works. In practice, the amendment process is quite burdensome and the threshold of 3/4ths of the States is very difficult to attain. This means that the Federal government finds it easier to expand its powers through pretense and “interpretation” than actually amending the Constitution to obtain a positive grant of power. Taking the easy route, the Federal government simply asserts new powers, just like the Supreme Court did in the same sex marriage case. Once the new Federal power is asserted, then the burden is placed on a State to try to stop the power grab. But to do so, a state must convince 3/4ths of its fellow states to ratify an amendment to take away the newly asserted power. Since the states find that amending the Constitution is very difficult to do, the power-grab by the Federal government remains in place, and a new status quo arises with Federal government growing in power, and the states and the people losing their rights. Although Calhoun was writing of his own time, this description fits our own time even better than it fits his. For decades after the founding of the Republic, the common man’s dealings with the Federal government were largely confined to the Post Office Department. Nowadays, we have a cradle-to-grave welfare state with a Constitution that is better suited to the old “Post Office” style of government. That all this growth in centralized power came without needing a single amendment to the Constitution is mystifying to say the least.
The difference between the intent of the Constitution and the practice of our government is both obvious and striking. The presumption that non-delegated powers belong to the states is reversed. The Federal government is assumed to be allowed to do whatever it wants to do, unless specifically prohibited by an amendment to the Constitution, and the states are placed on the defensive. The usurpation of power by default is assumed to be legitimate; unless the states can rally a 3/4ths majority to oppose the usurpation, it will stand. The amendment process (with its high threshold for authorizing changes to the distribution of powers) is simply bypassed and rendered obsolete. The will of the people, which is supposed to be the supreme authority under the Constitution, is ignored and made irrelevant. In short, allowing the Federal government to expand its powers through interpretation (or “construction”, as Calhoun put it) “utterly subverts” the Constitution.
Calhoun understood that these practices cannot continue, not if we as a people are dedicated to liberty. The remedy to prevent Federal encroachment on the rights of the states, the people, and minorities is found in the principles underlying the Constitution itself. Each state should be allowed the right to “veto or control, within its limits, the action of the [Federal] Government on contested points of authority” that are based solely on assertion or interpretation. The key to liberty is to “create a presumption against the constitutionality of [a newly asserted] power exercised by the [Federal] Government,” in accordance with the 10th Amendment. If any state objects to a newly asserted power, the Federal government should be compelled to “abandon its pretensions to a constructive power, or to obtain a positive grant of it by an Amendment of the Constitution.” Allowing states to stop reckless interpretations and force the Federal government to actually use the Amendment process would kill much of what the central government would like to do, but its chief advantage is letting the supreme authority in our system of government, the people of the states of 3/4ths of the Union, decide the questions of what the Federal government can do and what it must not do.
Echoing Jefferson and other Founders, Calhoun wrote that “there is but one certain and efficient protection” of our liberty, and “that is to be found in the rights and sovereignty of the States. It is only through them that the encroachments of the [Federal government] can be successfully resisted…. Opposition, on any other principle, is vain and hopeless. It has ever proved so, and ever will continue so to do, as long as our system may last.” Sadly, the passage of time has proven Calhoun right.
For the sake of liberty, it’s about time that Calhoun’s ideas be given serious consideration. His suggestions, which are really just a fine-tuning of the political doctrines of Jefferson and Madison, are immanently reasonable and fit well with the Constitution as it was handed to us by our Fathers. Calhoun’s model of presumptive States’ rights certainly corresponds to the Constitution much better than the current practice of the Federal government, which hasn’t changed much since Calhoun’s time. The chief benefit of Calhoun’s model of States’ rights, however, is that it returns the power in our system of government back to the people of the States, which both the Declaration of the Independence and the Constitution agree is where it belongs.
A Clear-headed View About States’ Rights
Lord Acton, the British historian-philosopher of liberty who recognized the danger of unbridled power, was able to look at the Civil War without partisan baggage, but he nevertheless was greatly interested in the outcome of the War. Reflecting upon States’ rights after the Confederacy collapsed, he wrote to Robert E. Lee:
“I saw in State Rights the only availing check upon the absolutism of the sovereign will, and secession filled me with hope, not as the destruction but as the redemption of Democracy.... I believed that the example of that great Reform would have blessed all the races of mankind by establishing true freedom purged of the native dangers and disorders of Republics. Therefore I deemed that you were fighting the battles of our liberty, our progress, and our civilization; and I mourn for the stake which was lost at Richmond more deeply than I rejoice over that which was saved at Waterloo.”
This is why the Confederate flag should be flown – as a symbol of States’ rights as a check upon absolutism. This is why Southern heritage needs to be remembered and embraced. Of course, that Southern heritage is not just the history of the South, but of all freedom-loving Americans. It’s about time that we stop foolishly relying on other approaches for restraining the government that have repeatedly failed and have proven insufficient to protect our liberty. We must give up those “checks on paper” and embrace the one real check that exists in our system of government. Our Fathers have shown us the way, but it is for us to walk in it. The memories of an honorable past based on States’ rights should enlighten our way forward and might just help us find the way to sustain (regain?) our liberty.