by Judge Andrew P. Napolitano
The following is an excerpt from the new book, “Dred Scott’s Revenge: A Legal History of Race and Freedom in America,” by Judge Andrew P. Napolitano. The excerpt is drawn from Chapter Five, entitled “The Civil War,” published here with permission from the publisher, Thomas-Nelson:
Dred Scott’s Revenge
One of the greatest misconceptions of American history is that the Civil War was fought over slavery. Those who subscribe to this belief see President Abraham Lincoln as the benevolent leader who made unimaginable sacrifices in human blood to wipe out America’s greatest sin. While the human sacrifice is indisputable and the sin was monumental, the war’s purpose was not to free blacks from the shackles of bondage. Rather, the Civil War was fought with one purpose in mind: To preserve the Union at all costs. And, to put it in Lincoln’s terms, with no ifs, ands, or buts. You’d better agree with the president, or else.
The North and South were divided both morally and economically. As the previous chapters have chronicled, the debate over slavery had firmly gripped the country in the decades preceding the Lincoln presidency. Since the country’s founding, the states and the federal government kept deeply rooted passions concerning slavery and abolition at bay by constantly compromising. The balance of free states and slave states was maintained as slavery expanded. States were given autonomy to deal with the issue of slavery as they saw fit, so long as they did not interfere with another’s property rights. But the Dred Scott case placed the federal government firmly on the side of the slaveholders, redefining the slavery provisions in the Constitution in a way that created a seemingly insurmountable obstacle to obtaining the human moral equality for which so many Americans yearned.
In addition to the country’s division over slavery, there was the concern over which economy the federal government favored—the South’s agrarian economy or the North’s commercial interests. Interestingly enough, the Dred Scott decision did not accurately reflect to which side of the debate the federal government was committed. Northern states had gained control of the federal government as the 1850s drew to a close, and the South found itself on the defensive. Its agricultural economy, sustained by slave labor, was attacked on both moral and economic grounds.
A QUESTIONABLE STANCE
Abraham Lincoln emerged as a candidate for the presidency at a time when national anticipation was at its peak. How would a new president balance the interests of the North and South? In the wake of Dred Scott, would he steer the country toward democracy or slaveocracy? Adding to the uncertainty were Lincoln’s own unclear and often contradictory statements over slavery itself. Lincoln never argued that slavery was unjust. Rather, he asserted that it threatened to weaken the Union and its democratic values. During the Lincoln-Douglas debates of 1858, Lincoln stated: “A house divided against itself cannot stand. I believe this government cannot endure, permanently, half slave and half free. I do not expect the Union to be dissolved—I do not expect the house to fall—but I do expect it will cease to be divided.” A skilled politician, Lincoln appealed to the antislavery interests of Northern abolitionists as well as moderates in border slave states who were opposed to racial equality.
But the common tale that Lincoln was a sympathetic and heroic defender of black freedom is simply a myth. As Union armies met the forces of the Confederacy on the battlefield, he openly argued, “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 do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause.” It is important to analyze the magnitude of what Lincoln says here. He admits that the emancipation of blacks will only happen because it is of assistance to the Union; slaves are only pawns in the game of politics and warfare he is playing. Lincoln places the freedom of blacks on a low priority compared to his desire to unify the nation, and his words here seem more becoming of a Confederate Army officer than the so-called Great Emancipator. Yet it is the latter title that we’ve all been taught to attribute to Abraham Lincoln. In my opinion, such a title is the least deserved sobriquet accorded any president. Lincoln’s rhetoric notwithstanding, Southerners were uncertain about his commitment to protecting their slavery interests. His consistent manipulation of the issue of slavery along the lines of Union preservation earned him the fraudulent title of a political moderate in the North, but Southerners were still adamant about having a Southerner as president.
LINCOLN IGNITES WAR
Despite Southern opposition, Lincoln was nonetheless elected as the sixteenth president of the United States in 1860. Far from over- whelming support, he received only 39 percent of the popular vote, and his name was stricken from the ballot in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, Tennessee, and Texas. In South Carolina the legislature chose not to have candidates for president on the ballot, in apparent anticipation of secession. Only 1.1 percent of white voters supported Lincoln in Virginia. These were the same states that would secede from the Union the following year.
The Southern states were increasingly discontented as their interests were of secondhand concern to the federal government. Without political influence in Congress, the Southern legislatures still retained the right to nullification and secession. Nullification was the legal theory by which states could declare federal laws unconstitutional, while secession was the right claimed by states to separate from the Union. As soon as Lincoln became president, states’ rights disappeared in the shadow of national power when he declared secession to be illegal. During his first inaugural address, Lincoln associated secession with anarchy as he stated,
Plainly the central idea of secession is the essence of anarchy. . . . In 1787, one of the declared objects for ordaining and establishing the Constitution was to form a more perfect Union. . . . It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resol[ution]s and ordinances to that effect are legally void.
However, Lincoln chose to ignore the historical underpinnings of the American political system; the right of secession followed from the American Revolution as the colonists separated from the British Empire and declared their independence. President Lincoln also made the faulty assumption that the Union takes precedence over the states, as the goal was “to form a more perfect Union.” He failed to recognize that states are free and independent, and combined they form the Union. As Ronald Reagan would say in his first inaugural address over a century later, “the federal government did not create the states; the states created the federal government.” This subtle distinction is an important aspect of State sovereignty. The United States was founded on the ideals that federal power could be challenged by the states. Lincoln overlooked the fact that the states had formed a voluntary agreement and did not have the ability to surrender their sovereignty forever to a centralized power.
Nullification was also a fundamental state right to prevent federal domination. States enjoyed the right to use nullification as a protective measure against unconstitutional federal laws by making them ineffective against their citizens. Nullification had become a states’ rights tradition, and both the North and the South exercised it prior to 1861. The most famous examples of this in the North centered around Northern states’ personal liberty laws, a series of laws that were passed in response to the Fugitive Slave Act. Even though the U.S. Supreme Court found these laws, and thus nullification, unconstitutional—in the 1842 case Prigg v. Pennsylvania—Northern states, yes, Northern states, continued to enact laws that criminalized the return of fugitive slaves in direct defiance of federal law. Lincoln’s attempt to trample the states’ sovereignty, even the rights of those opposed to slavery, only heightened the conflict between the advocates of a supreme, unchecked federal government and the advocates of a modest central government, tempered by nullification.. South Carolina started the trend of secession in December 1860. Concerned with preserving the Union at all costs, Lincoln was determined to use military force to bring the rebel states into line. But he did not want to be portrayed as an aggressor and needed the South somehow to ignite the conflict. This would make the Southerners look like the aggressors and would give the impression that Lincoln simply had no choice but to declare war as a defense against aggression.
The solution devised by Lincoln triggered a war that would kill seven hundred thousand Americans. Advised by his top military commanders that an incoming ship would be considered a threat to Confederates and would prompt an attack, Lincoln deliberately sent a ship of food provisions as well as additional armed soldiers to Fort Sumter, South Carolina. The Confederates fell for the ploy and fired the first shot. Lincoln responded by sending armed warships and deployed a total of seventy-five thousand troops to invade all of the Southern states.
His plan, however, did not go unnoticed. Northern newspapers were quick to inform the public that Lincoln had instigated the Fort Sumter incident. The Jersey City American Standard wrote, “there is a madness and ruthlessness” in Lincoln “which is astounding . . . this unarmed vessel . . . is a mere decoy to draw the first fire from the people of the South, which act by the pre-determination of the government is to be the pretext for letting loose the horrors of war.” The Providence Daily Post also wrote, “Mr. Lincoln saw an opportunity to inaugurate civil war without appearing in the character of an aggressor.” These headlines and stories were replicated by other newspapers in the North. Lincoln’s plan to bring the country into a war was no longer a hidden political strategy.
A substantial number of free blacks from the North offered to serve in the Union army, but their attempts were met with federal opposition. Freedom and equality were not intertwined in the North, and blacks were constantly reminded of this disparity. Requests by blacks made to the War Department went unheard, often for political reasons. President Lincoln was ultimately concerned with the border slave states possibly abandoning the Union if blacks’ status were elevated to that of a soldier in the Union army.
Lincoln’s position on slavery was made even more evident in the first few weeks of war. The fighting immediately prompted Virginia, North Carolina, Tennessee, and Arkansas to secede from the Union. In a clear display of Lincoln’s priorities, the President proposed to permit the continuation of slavery in Missouri, Kentucky, Maryland, and Delaware so long as those states remained in the Union. To save the Union from further division, Lincoln was willing to continue the subjugation of blacks.
In the end, this proposal worked, as those States chose not to secede. However, many citizens from those border states still joined the Confederacy. Both Kentucky and Missouri had two state governments, one supporting the Confederacy and the other supporting the Union.
By May 1861, a total of eleven Southern states had seceded from the Union and established their own nation, the Confederate States of America. The Confederacy was comprised of South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, Texas, Virginia, Arkansas, North Carolina, and Tennessee. The Confederacy’s Constitution contained provisions that expressly protected the institution of slavery, limited the power of the new central government, and clearly reflected state sovereignty. Lincoln refused to recognize the Confederacy, declared secession to be a violation of the Constitution, and effectively declared war on the people of the Southern states that refused to recognize his presidency.
Andrew P. Napolitano, who was on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His newest book is “Dred Scott’s Revenge: A Legal History of Race and Freedom in America,” (Nelson, 2009) His previous books are “A Nation of Sheep,” “The Constitution in Exile and Constitutional Chaos: What Happens When the Government Breaks Its Own Laws.”