Emancipating Slaves, Enslaving
Free Men, A History of
the American Civil War

by Jeffrey Rogers Hummel,
Open Court, 1996

Emancipating Slaves, Enslaving Free Men, A History of the American Civil War, by Jeffrey Rogers Hummel, is one of the most challenging and thought provoking histories yet produced of the American Civil War. While its basic argument is that the Civil War was a mistake, with terrible consequences for subsequent American history, one might be surprised to learn that it is nothing like an apologetic for the South or for slavery. Instead, it reflects the old Abolitionist point of view that the severance of the Slave States from the Union was the proper response to the existence of slavery, and thus that the secession of the Confederacy was a desirable turn of events. Slavery, on this perspective, was best ended by the flight and/or the rebellion of the slaves themselves, with the help of the Free States.

What actually happened had terrible consequences. One was the great slaughter of the war itself. More than 600,000 men died in the Civil War, about equal to all the dead of all other American wars put together (some 400,000 for World War II, 100,000 for World War I, and around 50,000 for both Korea and Vietnam), at a time when the population of the country was little more than 30,000,000. Thus, more than 1% of the entire population of the United States died, rising to as much as 25% of adult white males in some Southern states. This was an appalling toll, vivid and tangible at the scenes of the worst slaughter, like Shiloh, Antietam, Gettysburg, Cold Harbor, etc., where bodies carpeted the ground. Considering that around 400,000 slaves were originally brought into the American Colonies in the first place, the words of Lincoln's Second Inaugural, that perhaps all the blood drawn by the lash would need to be repaid in blood drawn by the sword, accurately described the magnitude of the retribution.

Another evil consequence was for the freed slaves themselves. Once Union occupation forces were withdrawn from the South in 1877, free slaves were at the mercy of the bitter white majority. What followed was a century of Jim Crow laws and Segregation, enforced with judicial and extra-judicial terrorism, a regime of lynchings, the Ku Klux Klan, and all but legally enforced poverty. Since the slaves had not freed themselves, they were little inclined or equipped to do what would have been necessary to maintain a truly free status. After a decade and a half of War and Reconstruction, the North was no longer interested, and could not politically maintain, an indefinite military presence in the South to enforce things like the 14th and 15th Amendments. As Segregation Laws were increasingly put in the place in the 1890's, during a period of the worst lynchings (230 in 1892), the Supreme Court, in Plessy v. Ferguson (1896), in effect gave federal judicial approval to the Segregation regime. After that, there was little hope of change until after World War II.

A final, terrible consequence of the War was the first great step in the destruction of the plan of Constitutional Government envisioned by the Founders of the Nation. This was specifically why many Abolitionists opposed the Civil War: They anticipated that a nominal freedom for the slaves could well be bought with real tyranny for everyone. The civil rights abuses during the war itself, in both North and South, were conspicuous enough. But in the long term, the weakness of the Constitution noted by Jefferson, that there was really no means for the States or individuals to enforce it against abuses by the federal government, which previously had been mitigated by the possibility that States might simply leave the Union, was now profoundly exacerbated by the removal of that possibility. Slowly but steadily, even inexorably, all the evils feared by the Abolitionists, and by the original Anti-Federalists, would come to pass. Hence the second half of the title of Hummel's book, "Enslaving Free Men."

Soon enough, in 1863, one of the greatest achievements of the early Republic, Andrew Jackson's destruction of the Second Bank of the United States, was undone with the establishment of National Banks and a National Currency. Jackson had ended one of the earliest Federalist schemes for expanding federal power, a Central Bank, against which Madison and Jefferson had argued on the principle that the Constitution gave the federal government no power to found such a thing. Representing, as it did, many of the remnants of the Federalist and Whig parties, the Republican Party instituted a banking system that ultimately led to the Federal Reserve System, the creation of a virtual Central Bank, a final federal Monopoly over the money supply, perpetual inflation and fiscal irresponsibility on a hitherto inconceivable scale, and so to a regime much as Alexander Hamilton would have liked in the first place. The "rage for paper money," which Madison had referred to as a "wicked scheme," is now accepting as the normal course of affairs.

However, the worst seed planted, even in the well motivated 14th Amendment, was the principle that the federal government could overturn State laws for reasons that seemed good to it. The positive side of that power was that it could prevent the kind of thing that went on before the Civil War, when States could actually ignore even the First Amendment and practice censorship against unwelcome political dissent. That such power was then often not exercised by the federal government did not mean it was not ready to be used in the future, as it would be. The negative side of that power, however, was that there was no check or balance acting against it: Once the Congress or the Supreme Court simply decided to take the bit in its teeth, there was nothing to prevent, as Jefferson anticipated, dishonest and idiosyncratic readings of the Constitution merely in the service of federal power and political interests. The progress of these evils is separately examined in the essays "The Corruption of Civil Rights and Civil Law" and "Two Logical Errors in Constitutional Jurisprudence".

We must reflect, however, whether the "what if's" of Hummel's history were realistic or possible, and also whether the prospect of future tyranny makes the moral situation in 1861 all that simple. In fact, there was little hope that a separate Northern Republic would have been all that helpful in ending slavery in the South. If the Southern States were allowed to secede, the United States would not then necessarily have become an active agent in fomenting slavery rebellions. That would not have been diplomatic or friendly to a sovereign neighbor, and the prospect of some nearby State becoming another Haiti would have been agreeable to few. Similarly, the availability of the North as a refuge for runaway slaves is wishful thinking. In modern terms, most Northern opinion, even much Abolitionist opinion (which also was nowhere near a majority in the North before the war), was blatantly racist. Few wanted to see an influx of free blacks into the North. There were many places where that already was not tolerated, and such practices would harden in the future when there actually was a large influx of blacks into the North after the turn of the century (fleeing Segregation, lynchings, etc.). Many of those long opposed to slavery, including Abraham Lincoln himself, wanted and expected that freed slaves would go back to Africa, and they had no intention of receiving free blacks into American society on terms of citizenship and equal rights. (See "Racism".) The Civil War itself changed some of that, but it does not do to forget what attitudes there were prior to that transformation -- and how the Civil War itself was instrumental in some of the positive changes, as with Lincoln abandoning the "back to Africa" program.

The argument that slavery would "naturally" have been abolished in the course of time in the South, as it was peacefully abolished in Brazil by 1888, creates a couple of problems. One is that the South was not Brazil. Brazilian society included much more intermarriage and much less in the way of stark black/white racism than in the South. Even though slavery in Brazil probably had been much more brutal than in the United States, the Catholic Church at the same time had always strongly affirmed the equal humanity of the slaves, and recognized slave marriages. In the South, on the other hand, the humanity of the slaves received little recognition from the law, slave marriages had no legal standing (as in Roman slave law), and the religion of most slave holders was perfectly willing to degrade the descendants of Ham to intrinsic inferiority. That take on the Old Testament, together with Aristotle's idea of "natural slaves," fostered agreeable rationalizations for slavery and racism. Thus, the social and intellectual dynamic in the South does not compare with Brazil. At the same time, we must ask whether the abolition of slavery in Brazil was a consequence of the kind of precedent set by the American Civil War. If the war had not occurred, and slavery had continued in the South, abolishing slavery in Brazil might have seemed much less like the thing to do, especially if the Confederacy had decided to reopen the slave trade with Africa, which had previously ended because of the agreement of powers like Britain and the United States. It is now often forgotten, or ignored, that Africans were still perfectly willing to sell slaves and actually protested when Britain and others began to suppress the slave trade.

Another problem with the "natural abolition" argument is its questionable morality. Even if the South had abolished slavery by 1888, like Brazil, that would have left a whole further generation of people to grow up in slavery. Usually, if we see someone being assaulted or robbed or raped, and we are able to protect them from the attacker, it is our moral duty to intervene. We do not comfort ourselves that in time the attack will "naturally" end, and so everything will be all right. No, everything will not be all right. Every moment of the attack is more harm and more of a wrong done. It is our duty, if we are able to do so, to come to the aid of the victim immediately.

Thus, if the secession of the Southern States could not reasonably be expected to create conditions that would very soon end slavery, we must then admit the immorality of allowing it. It is simple enough to assert in abstraction that Southern States had a right to secede, and that is that, as though slavery was not even an issue; but if a crime is being committed, it is our duty to stop it. Also, even if we concede that slave holders were acting in good faith, based on centuries of tradition, and were not morally culpable, it is still obvious that no burglar, even if acting in good faith, should be allowed to leave the premises of the burglary with goods that are not his just because an innocent person would ordinarily have the right not to be detained where they did not want to be. The extra factor is the possession of goods that are someone else's property. The "good faith" burglar may be innocent of crime, but we will require him to part with the improperly acquired property.

Were slave owners then to be allowed to leave a judicial regime in free possession of goods (e.g. persons) that are not theirs and could well be judged stolen? If slavery was one of the greatest evils that human beings ever inflicted upon each other, is that a factor that can simply be overridden and ignored in relation to freedom of association and the political "consent of the governed"? Indeed, that is to recognize the same freedom in the slave owners that is simultaneously denied in the slaves. This is a paradoxical form of moral discrimination, to say the least. If our moral duty is to come to the aid of victims of criminal assault, if we are able to do so, then the moral duty of Northerners was to come to the aid immediately of enslaved human beings in the South, just as John Brown and Frederick Douglass originally thought. But if it was the duty of true Abolitionists to take up arms, it would be perverse not to do so just because the political rationale at large was otherwise somewhat morally confused. Thus, even if other Northerners fought to "save the Union" rather than to free the slaves, that could have been accepted, as it was by Douglass, as sufficient for the commission of the proper purpose.

Hummel seems to take Lincoln at his word that he would free no slaves in order to save the Union. However, no "Fire Eaters" in the South believed that kind of thing for a minute; and it is their suspicion that drove events. South Carolina and the original seven Confederate States left the Union in order to preserve slavery, pure and simple. They would not live under a regime dominated by a Party dedicated to ending slavery, just as earlier Abolitionists did not want to live under a regime (though they did anyway) that tolerated slavery. The Border States that subsequently seceded, like Virginia and Tennessee, did so more on the Constitutional principle that force should not be used to prevent secession -- though even that principle, curiously, only appealed to Slave States with a sufficiently dominant slave holder political faction. Since Lincoln subsequently issued the Emancipation Proclamation at very nearly the first political opportunity to do so, we might suspect too that he was more than willing to "save the Union" as a means to freeing the slaves.

Lincoln, in short, did at each step what was politically possible. After his death, it was politically possible to end slavery even in states that had never seceded (Missouri, Kentucky, Maryland, and Delaware), through the 13th Amendment, to grant citizenship and equal rights to freed slaves, through the 14th Amendment, and to guarantee voting rights to free slaves, through the 15th Amendment. These were Radical measures, in both name and fact. Nor are any of those Civil War Amendments morally or politically objectionable in themselves. If they served in the long run to help undermine Constitutional government, that was because of weaknesses that already existed in the Constitution, because of the later ascendancy of collectivist and Statist ideologies (whose power few in the 1860's would have predicted), and because it later became politically possible to exercise the most blatant sophistries to rationalize the expansion of federal power (in the disgraceful decisions of New Deal dominated Supreme Courts).

The Civil War, therefore, presents us with one of life's typical situations of moral ambivalence and moral trade-offs. As Thomas Sowell likes to say, there was no simply and decisive "solution" to the evil of slavery, in that the means of abolishing slavery that actually became historically available involved an exchange for hideous war dead, Segregation, the promotion of federal power, and other evils. To the extent that slavery as such was decisively discredited in human history, the price may or may not have been worth it, but the price was paid and a certain decisive result was achieved.

Even so, ironically, the United States is nevertheless routinely despised for having allowed slavery in the first place! And some "civil rights" groups still demand "reparations" for the loss of property, income, and freedom suffered by African slaves! America and Britain in particular are thus damned for an institution that they did not create, even though they both ended it, even while someone like Louis Farakhan seeks refuge in Islam, which created the African slave trade in the first place, never condemned or abolished slavery, and which in some places still tolerates it. This is moral perversity elevated to new heights: Which is not to condemn Islam, any more than America or Britain, but just those hypocrites who don't know or don't care that Islamic Law, which in principle is flexible enough, may not have quite caught up with the 20th Century (or, in some cases, the 19th).

After the price that America paid for the 13th Amendment, she only deserves honor, not contempt. Furthermore, do we need to say that the motivation to Save the Union was unworthy in itself? No union founded on injustice would deserve to be preserved, but the only injustice of the original Union recognized by most Abolitionists was the injustice of slavery itself. On the other hand, apart from anarchists like Lysander Spooner, most earlier Democratic opinion, from Thomas Jefferson, to Andrew Jackson, to Sam Houston (who was removed as Governor of Texas when he refused to allow Secession), did see the Union as a good in itself; and Lincoln's Constitutional justification for federal actions did fall in the at least ambiguous area of federal powers to subdue "rebellion." For heaven's sake, Andy Jackson had already threatened South Carolina with war should it just try to "nullify" federal law. Actual secession could well have sent him into one of his towering furies. He might have led the Union armies himself.

The fundamental reflection for the Union must be that we do not want a state that will become Poland, so undermined with half-baked "liberties" that it cannot resist predatory neighbors. No. We want a strong state to protect us. The trouble, as it always is, is that the dogs of our defense, as Plato said, can too easily become wolves against us. This has happened. But it did not happen just because, or even mostly because, of Abraham Lincoln.

It is now mostly forgotten that the original Northern term for the Civil War was the "Great Rebellion." "The War Between the States," which some confusedly think of as a romantic, old fashioned name for the war, was actually the partisan Southern designation, since the South saw the war as the Northern States warring against the Southern States, instead of the South rebelling against the United States of America. The complaint of the Southern States against the Union was only, to repeat again, their fear of losing their disgraceful "property" in human beings. South Carolina had a better case back in the "Nullification" crisis under Andrew Jackson (in 1832), when the complaint was economic loss to Southern exports created by tariffs designed to protect Northern industries. Since it was not the Constitutional business of the United States government to be protecting some private businesses at the expense of others, such tariffs were certainly injustices, and South Carolina had every right to expect Constitutional redress, which she never got, though a compromise quieted the crisis. With nothing else at stake, and with a popular, no nonsense Southern President, Andrew Jackson himself, and the compromises, South Carolina backed down. But the whole business was a dangerous portent for the future, when the temptations for political meddling in private economic matters would become overwhelming -- to the extent that now most Americans probably think it is the proper business of government to meddle in economic matters.

The United States Constitution was written, promoted, and accepted precisely to prevent the kind of political fragmentation, weakness, vulnerability, and conflict that was all too evident under the Articles of Confederation. That the fears of the Anti-Federalists have been fully born out, in that, after 200 years, the federal government has assumed just the kinds of plenary, absolute powers that all the original Founding Fathers feared and wished to prevent, does not mean that the Articles of Confederation must have been good enough. After all, the corruption of the Constitution took rather a long time, and we are not without insight, even from the beginning, into what was overlooked in its provisions to prevent the kinds of problems that have occurred. Ad hoc measures to address certain kinds of abuses, like the Civil War Amendments, did not address others, and would later exacerbate them -- while later attempts to correct problems, like the 16th Amendment to allow an Income Tax, the 17th Amendment to require the direct election of Senators, and the 18th Amendment to institute alcohol Prohibition, all turned out to be disastrously misconceived. These developments indicate that the problem was not the Constitution itself, but the ideologies under which the nature and purposes of government have been conceived as time has gone on. The generation of Jefferson or even of Lincoln would not have allowed the foolishness embodied in those "Progressive Era" amendments and would well have understood the evils of unlimited government that the amendments would allow. Americans, however, have simply forgotten what the Founders knew so well about the dangers of political power. They have even forgotten why it was thought necessary to pass an Amendment to the Constitution in order to prohibit alcohol: After all, today the federal government feels free to prohibit anything -- marijuana, heroin, cocaine, tobacco, etc. -- with no more justification than that this seems good.

Our problem, then, is not so much to fix up the oversights in the Constitution, though this will need to be done, but to return the consciousness of the Nation to the understanding of the nature of government that informed people like Washington, Franklin, Jefferson, Madison, Monroe, Jackson, and even, apart from wartime exigencies, Lincoln. This understanding was not damaged so much by the Civil War as by the socialist ideologies that only began to flourish in the following years. The system of Nation Banks, for instance, although illegitimately designed in part as a source of forced investment in United States securities, was at least completely decentralized and privately owned. Even the Federal Reserve System was acceptable in 1913 only because it was decentralized (with 12 co-equal banks), privately owned (after a fashion), and supposedly above political control. When weaknesses were recognized in the National Bank or the Federal Reserve System, however, these were not understood as artifacts of misconceived government control, but as problems of market failure that could be remedied by even more government control. That is the tragedy of America in the 20th century: a series of False Causes that led to the complete destruction of Constitutional Government in the New Deal and the Great Society, politically engineered with the false coin of looted wealth, creating a Welfare State system protected by interest groups living off of government largess.

But that, perhaps, is another story. For the Civil War itself: protecting the Union from dissenting slave owners was not an unworthy cause, even if it was somewhat morally confused and equally penalized those who honestly fought for their own freedom and for, on a very reasonable interpretation, true principles of Constitutional government. The falseness at the heart of the Southern cause, however, was still evident in the 1950's and 60's, when the only arguments ever offered for the enforcement of the 10th Amendment were clearly rationalizations to allow the continued oppression, thorough Segregation, terrorism, and the denial of voting rights, of black Americans. "State's Rights," far from a argument for freedom, became all but synonymous with Segregation itself. In truth, this did more damage to American political discourse, by morally discrediting the principles of limited government and enumerated powers, than any acts of Lincoln, Wilson, Roosevelt, or Johnson. Ironically, although Wilson promoted Segregation and Roosevelt never attacked it, it was the Solid South and the Southern Populist roots of their "Progressivism" that promoted expanded powers of government that later could be with ease turned against Segregation itself. And were.

Lost in the shuffle was the original idea that the federal government of the United States should have sufficient power to do certain things, but not just anything. To protect citizens from the "tyranny of the majority" was one of the original purposes of American government, a purpose still evident in the Civil War Amendments, and in the final, albeit fatally confused and self-defeating enforcement of them in the 1950's and 60's. It is certainly a challenge both to get the ideas quite right and to get the institutions quite right to implement the ideas. When too many people in America still want collectivism and socialism (e.g. things like guaranteed National Health Care), and still want a federal government with absolute powers so that it can pay them for open ended "entitlements," it is obviously still a little too soon to set things right in either respect.

In relation to these long term problems, the men of the Civil War did not die in vain, on either side. To me, it is still thrilling to see Augustus Saint-Gaudens's (1848-1907) great statue of William Tecumseh Sherman on the Grand Army Plaza in New York City. Although Sherman became a bye-word for terror in the South, he did not hate the South, did not want a "Carthaginian" peace (which some Radicals did), did not want revenge, and did not like war ("War is Hell"), but just tragically anticipated what "total war" was going to come to mean in the 20th century. (As we now have "total war," by "other means," against freedom and private property by the federal government.) He, with Grant, great generals both, just finished the damn thing. Good. What the war meant, then, is briefly expressed in the song of Sherman's men, "Marching Through Georgia" [this is a 734KB audio file, a long load -- from Songs of the Civil War, Columbia, Sony Music Entertainment Inc., 1991]: "The flag that makes you free." Indeed. Sherman's men told the slaves of Georgia, in their own blunt and racist way, "You niggers is all free now." That, as we say, is the bottom line, for Sherman and for the Civil War. The End of the Slavery. "Slavery" would later be used as a metaphor, as "wage slavery" by Marx, or as "slavery" to the bureaucrats and politicians of the Welfare State now, but real slavery, meaning people who have no more rights than a cabbage, with this enforced by government, does not exist in the United States.

The trade-offs may have been terrible, but it is unrealistic to expect that there was some "solution" that would have solved everything in 1861 or 1865. As one Abolitionist, Wendell Phillips, said, "Eternal vigilance is the price of liberty" (though he became a Prohibitionist -- go figure). Indeed, we have not been vigilant. We have been careless and greedy and have consequently lost much of our freedom. We are paying the price in money and tyranny. But that is not the fault of the men who died at Gettysburg, or those who sent them there. It is our fault. Now. Today. The great value of Hummel's history, then, is not to show us that the Civil War was a mistake, which it was not, but to show us the damage the war, mistake or not, actually did do to Constitutional government. Since this is little appreciated in a era when most people may actually think that the United States still has Constitutional Government, which it does not, that point needs to be made as many ways as possible. And where a number of our problems begin with the Civil War, it will always be a convenient and important place to begin a general reexamination of what has happened to us.

I am a Union man

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