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The Four Biggest Libertarian Myths About the Civil War

#1 On The Daily Show Judge Andrew Napolitano told Jon Stewart that a war against slavery could only be justified after the federal government “had tried everything else, like abolishing the Fugitive Slave Act, which Lincoln enforced, and his judges enforced, and his federal marshals enforced, until the Civil War was over and Lincoln was nearly dead.” Toward the end of the show the judge repeated the claim that “Lincoln used federal marshals” to enforce the Fugitive Slave Act and return slaves to the South.

As soon as the war began the federal government effectively returned enforcement of the fugitive slave clause to the states, where abolitionists long insisted enforcement belonged.  In the free states this meant that, for all practical purposes, the fugitive slave clause was no longer enforced at all.  Of course I wouldn’t be surprised if someone came up with a case or two of a federal official somewhere in the North trying to enforce the Fugitive Slave Act at some point during the war.  But I know of no such cases, and there are none cited in Stanley Campbell’s standard study of The Slave Catchers.  In the four slave states and Washington, D.C., however, commissioners and federal marshals continued to enforce the law, though only sporadically, until Congress finally repealed the Fugitive Slave Act in June, 1864. 

But from the beginning of the war most runaways escaped Union military lines, putting them beyond reach of the commissioners who enforced the Fugitive Slave Act.  In late May, 1861, only weeks after the war began, the Lincoln administration expressly approved General Benjamin Butler’s decision not to enforce the Fugitive Slave Act in Virginia, on the grounds that the state had seceded and was no longer covered by the law. In August of 1862 Lincoln’s War Department instructed Union officers to emancipate all slaves coming into Union lines from areas in rebellion.  In early 1862 Congress made it a crime for anyone in the Union army to participate in the capture and return of fugitive slaves no matter where they came from, including the Border States.  As far as most slaves were concerned, the fugitive slave clause of the Constitution and the Fugitive Slave Act of 1850 had become dead letters almost as soon as the war began.

So while it’s true that some federal commissioners in some areas continued to enforce the 1850 law, the number of slaves affected was minimal.  Although a couple of dozen slaves were captured and returned by the federal marshal in Washington, D.C., for example, thousands of slaves poured into the city during the war and made their way to Union army bases and federal contraband camps where they were emancipated rather than returned. 

Perhaps I misunderstood Judge Napolitano’s point.  When he insisted that he was talking specifically about Lincoln, that Lincoln “enforced” the Fugitive Slave Act, that he “used” federal marshals to enforce the law—I somehow thought Napolitano was suggesting that Lincoln personally ordered marshals to return fugitives—which Lincoln never did.  It sounded to me as though Napolitano was claiming that it was Lincoln’s policy to enforce the Fugitive Slave Act, when in fact his policy was to severely restrict enforcement of the law. 

But it seems I was mistaken.  The judge’s supporters are now claiming that he was right all along because there were some federal officials in the Border States and Washington, D.C., who did continue to enforce the law.  If that’s all Napolitano was saying—that some commissioners did continue to enforce the law during the war—then I owe the judge an apology.  But I don’t believe for one moment that Napolitano was saying something so trite and inconsequential.  He was talking about Lincoln; he was implying that Lincoln personally ordered federal marshals to return fugitives to their owners and suggesting that Lincoln did this as a matter of policy.  And that’s just not true.

It’s an odd accusation, considering the source.  Usually Napolitano and his allies accuse Lincoln of violating the law and trampling the Constitution.  In this case they are denouncing Lincoln on the grounds that he enforced the law.  Imagine what they would be saying if, instead of maintaining a discrete silence as the Fugitive Slave Law was conspicuously disregarded almost everywhere in the country, Lincoln had openly ordered federal marshals to disobey the law.  The Judge would be all over the TV advertising such an order as further proof that Lincoln was a lawless tyrant!

#2 Lincoln snookered the South into firing the first shot. 

The Confederates did not level Fort Sumter with spitballs and slingshots.  As soon as South Carolina seceded the state government and then the Confederacy set about building a massive war-making machine in Charleston Harbor.  They lined the battery with heavy cannon aimed at the fort.  They stockpiled ammunition, amassed weapons, and began raising armies.  President Jefferson Davis was openly and unapologetically preparing for the war he knew was coming.  He sent Confederate General P. G. T. Beauregard to Charleston to take command of the military operation.  These preparations for war began weeks before Lincoln was inaugurated.  The idea that he “tricked” the Confederates into a war they would not have launched otherwise is, simply, ludicrous.

#3 Lincoln “started the war” so that he could collect tariffs from the South. 

Let’s accept for the moment the ridiculous premise that Lincoln “started the war” and focus on Napolitano’s claim that Lincoln did so because he wanted to collect tariffs collect from the South.  What tariffs?  There was hardly any tariff in 1860; it had been reduced to almost nothing fifteen years earlier and raised a smidgen in 1857.    On the basis of no evidence whatsoever, Judge Napolitano claimed the duties were over 30%.  This is nonsense. 

Then, too, if Lincoln cared so much about the tariff that he was willing to go to war for it, you’d think he would have mentioned it once in a while—in his Peoria speech in 1854, for example, or during the Lincoln-Douglas debates in 1858, or the Cooper Union Address in 1860, or maybe in the First Inaugural address.  Instead all we get from Lincoln on the tariff is stone cold silence.   The same goes for the secessionists.  If the tariff was such a big deal to them, why did they mention it so infrequently?  Why did they keep harping on slavery?

Not really a myth, but a common libertarian argument: the North went to war to preserve the Union, not to destroy slavery. 

Whoever said otherwise?  The problem with the “war-for-the-Union argument not its inaccuracy but its inadequacy.  By nearly universal agreement—among the actors at the time and historians today—the Constitution recognized and protected slavery in the states where it already existed.  This meant that the official purpose of the war could never be the destruction of slavery because that would violate the Constitution.  Long after he issued the Emancipation Proclamation Lincoln continued to insist that the “purpose” of the war remained unchanged--the restoration of the Union. 

But you’d be hard pressed to find anybody at the time—slaves and masters, Republicans and Democrat, northerners and southerners—who didn’t blame the war on either slavery or antislavery.  Lincoln and his fellow Republicans said, right from the beginning, that the cause of the war was slavery and that emancipation was a legitimate and ultimately indispensable means of suppressing the southern rebellion.  In short, the war was always about slavery and always about the restoration of the Union.  To yank the two issues apart is to ignore what everyone at the time understood were closely related.  As Lincoln put it repeatedly, beginning in the 1850s:  Slavery was the only issue that every threatened to destroy the Union.

#4 Slavery was dying a “natural death” and would have disappeared without the war. 

Name one country in the hemisphere where slavery died a “natural” death.  The judge kept citing “legislation” that killed slavery.  He’s the only person I know of who thinks that a law abolishing slavery is the same thing as dying a natural death.  If the state of New Jersey passed a law ordering Judge Napolitano’s execution, would anyone say he had died “a natural death?”  Slavery was growing and profitable when it was “executed” in Haiti, Jamaica, and the southern states.  Historian Seymour Drescher calls this “econocide,” the deliberate murder of a profitable economic system.  The suppression of the slave trade during the Civil War put tremendous pressure on slavery in Cuba and Brazil, both of which were profitable but which also relied on imports.  Seeing the handwriting on the wall, both societies abolished slavery by legislation. 

That couldn’t happen in the United States--though Judge Napolitano seems to believe it could have—precisely because the Constitution recognized and protected slavery in the states where it existed.  It wasn’t like that elsewhere in the New World.  The governments of Cuba and Brazil could pass laws abolishing slavery in their own countries.  Parliament could pass a law abolishing slavery in its Caribbean colonies.  The revolutionary French republic had abolished it in Haiti.  But the United States Congress could not abolish slavery in the southern states because the Constitution didn’t allow it. 

Lincoln could emancipate large numbers of slaves as a military necessity in wartime, but that’s not abolition, and it only ended up freeing about fourteen percent of the slaves.  He  could pressure states to abolish slavery, but he only got five slave states to do it—leaving slavery legal in ten states when the war ended.  The truth is that only way to get slavery abolished was by rewriting the Constitution.  That’s why we ended up with a Thirteenth Amendment.  Yet Napolitano seems to believe that Lincoln should have called for legislation abolishing slavery in the states—which almost everyone thought was unconstitutional.  Someone who teaches constitutional law at Seton Hall Law School ought to know this. 

Like most Lincoln-haters, Napolitano damns Lincoln if he does and then damns him if he doesn’t.  He regularly denounces Lincoln for trampling the Constitution, yet he attacks Lincoln for failing to emancipate the slaves of loyal masters who in states that were not at war with the Union. Does he think the war powers allowed Lincoln to do that?