Civil Liberties and the Civil War
One hundred and fifty years ago, on July 4, 1863, twin Union victories at Gettysburg and Vicksburg decisively turned the course of the Civil War. One consequence of that victory was the emancipation of slaves in America. Another consequence has been the invention of a dangerous myth: that the federal government is the best vehicle for protecting civil liberties.
This myth has been so potent that when the Supreme Court ruled this June that the "preclearance" provisions of the Voting Rights Act no longer applied to suspect jurisdiction, which included nearly all of the South, self-anointed "civil rights" leaders warned of great dangers. Even among many conservatives, there is the false understanding that the Bill of Rights was intended to protect our liberties from all government.
Actually, the Bill of Rights is intended to protect American citizens and American states from the federal government, which was understood to be the greatest threat to civil liberties. After the Civil War, the Supreme Court invented out of whole cloth the "Incorporation Doctrine" by which the Bill of Rights in the Constitution was deemed to apply to states as well as the federal government.
This was utterly unnecessary: every state has its own Bill of Rights, and the first thirteen states had these bills of rights in force before the federal Bill of Rights or even the Constitution. These state bills of rights typically provided more civil liberties than the federal Bill of Rights.
Why, then, have Americans been persuaded that we need the federal Bill of Rights, federal laws, and federal courts to protect our civil liberties? The legacy of the Civil War is the sole basis for this curious and flawed reasoning. Grasping the irrationality of this belief requires dipping into American history before the Civil War.
Slavery existed in every state of the new United States. By the time of the Civil War, most states of the Union had abolished slavery, and it was very likely that many of the slave states, on their own, were going to follow suit: Missouri, Delaware, Kentucky, and Tennessee, for example, were states in which slavery offended free working men and European immigrants and in which cotton, the cash crop which made slavery profitable, was not grown.
Even in the Deep South, slavery faced profound problems. France, England, Canada, and Mexico all had the same hostility to slavery that the North did. Moreover, cotton was being grown in Egypt, India, and other regions with free labor at prices which could undercut the South. Moral and economic pressures were going to doom slavery, and they could have done so without the horror of Civil War.
The Civil War and its aftermath of hyper-federalism masked why the Deep South began secession after Lincoln's election in 1860. It was not because Lincoln had promised to use federal power to force emancipation upon states in the South. It was rather because, for the first time, the slave-owning South had lost its iron grip on federal power. This included making sure that any Democrat in the North who wanted to rise in Congress or to the White House supported the South on slavery.
Every president since John Quincy Adams had supported the enforcement of fugitive slave laws, had opposed emancipation of slaves in the District of Columbia, and had appointed Supreme Court justices who were sympathetic to slavery. The idea that the Supreme Court protected civil liberties from state government excesses -- an unspoken theme in politics today -- reached its most macabre inversion in the odious Dred Scott v. Sanford decision. Blacks, the court held, once slaves in the South, were always slaves in America.
The Supreme Court ran roughshod over states' rights of northern and western states which had no slavery. The solid Democrat South wholeheartedly supported this federalization of slavery and the removal of the issue from legislatures to the federal bench. In the party's 1860 Party Platform, Democrats said, regarding the slavery issue:
Resolved, That the Democratic party will abide by the decision of the Supreme Court of the United States upon these questions of Constitutional Law. ... Resolved, That the enactments of the State Legislatures to defeat the faithful execution of the Fugitive Slave Law are hostile in character, subversive of the Constitution, and revolutionary in their effect.
State governments, not the federal government, protect civil liberties. Oppressed people seek freer and more sympathetic governments. Blacks once fled Jim Crow Mississippi for Chicago, but today Chicagoans may flee the Windy City for the freer business climate of Mississippi.
This marketplace of governments, when states' rights within a federal system are robust, also allows cultural and religious differences to be resolved, with everyone winning. Mormon Utah has some of the strictest alcohol laws in the nation. New York City, which has a very large Jewish population, closes its public schools on Jewish as well as Christian holidays. State elected officials also live in the communities whose laws they make and enforce. This is radically different from Washingtonians who nominally hail from Colorado or Florida, but who school their children and live their lives in the artificial hothouse of our nation's capital.
Civil liberties matter. Defending those liberties is the very purpose of government, as our Declaration of Independence reminds us. Those liberties thrive only when states are strong. That is the real lesson of the Civil War.