The Civil War Was Not Inevitable: Near Zero Chance of Reprise Today
By Bruce Fein, philosopher, writer, and lawyer
Yale historian David W. Blight wrongly argues in The New York Times Magazine (December 25, 2022, “The Irrepressible Conflict”) that the Civil War became inevitable by the Supreme Court’s racist, non-originalist 1857 decision in Dred Scott v. Sanford. It held that blacks had no rights that white men were required to respect (and could never attain citizenship); and, that Congress lacked constitutional authority to prohibit slavery in the territories. The Yale historian frets that we are confronting the same or a similar irrepressible conflict today between Donald Trump’s “Stop the Steal” cult and Team Normal.
The Yale historian makes the counter-historical assertion that the Dred Scott case, “made moderation nearly impossible, and many Republicans took more radical stances [including Abraham Lincoln].”
Consider President Lincoln’s first inaugural address, delivered after South Carolina had unconstitutionally seceded from the Union, joined by Mississippi, Florida, Alabama, Georgia, Louisiana, and Texas. Mr. Lincoln’s words were a model of moderation on the issue of slavery. He reassured: “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.” Mr. Lincoln urged compliance with fugitive slave laws — even those thought unconstitutional.
As regards the Dred Scott decision, President Lincoln did not rebuke the Supreme Court or deny its authoritativeness for the parties to the dispute. He did note the possibility of an overruling of the precedent and stressed that the executive and legislative branches might independently, in exercising non-judicial power, part company with the Court’s dicta that Congress lacked constitutional authority to prohibit slavery in the territories. Here Lincoln stood on solid Democratic Party ground.
Democratic Party founder and icon Thomas Jefferson wrote to Abigail Adams in 1804:
“The Constitution…meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
President Andrew Jackson echoed in vetoing legislation to extend the Second Bank of the United States whose constitutionality had been upheld by the Supreme Court in McCulloch v. Maryland (1819):
“The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution.”
But if Dred Scott did not provoke the Civil War, what did? The sociopathic craving for power by Southern political leaders. The Constitution did not prohibit an amendment abolishing slavery by two-thirds majorities in the House and Senate and ratification by three-fourths of the States. (Slavery was abolished in 1865 by the Thirteenth Amendment through that very process).
Southern leaders knew by 1860 when President Lincoln was first elected that slavery was doomed under the Union. The institution was not economically viable new States emerging from our continent-wide expansion. Kansas, for example, was admitted as a free state on January 29, 1861, before Lincoln’s inauguration. It was only a matter of time until three-fourths of the States would vote to ratify an anti-slavery amendment, which would sound the political and economic death knell for the Southern Power Elite.
Dictated by that elite, the Confederacy fired on Fort Sumter in an act of aggression on April 12, 1861, seeking an independent sovereignty through unconstitutional means in which their hormonal cravings for power and wealth would be gratified. Southern aggression was unleashed notwithstanding President Lincoln’s assurance in his first inaugural that “there will be no invasion…anywhere.” Mr. Lincoln made a further concession bending over backwards to avoid war:
“Where hostility to the United States in any interior locality shall be so great and universal as to prevent competent resident citizens from holding Federal offices, there will be no attempt to force obnoxious strangers among the people of that object. While the strict legal right may exist in the Government to enforce the exercise of these offices, the attempt to do so would be so irritating and so nearly impracticable withal that I deem it better to forego for the time the uses of such offices.”
In sum, the Confederacy was born not from an irrepressible conflict but from the refusal of the Southern Establishment to accept the procedural rules of the Constitution to determine the fate of slavery upon which their power and wealth depended. The Establishment could see the handwriting on the wall and decided to abandon the Constitution with force and violence before risking their exalted political and economic standing.
Today, there is no risk of a civil war. Nearly 1,000 have been arrested and charged for participation in the January 6, 2021, insurrection to prevent the peaceful transfer of presidential power. More than 450 have already been convicted by guilty pleas or jury verdicts. Protests in favor of the insurrectionists have been inaudible and invisible. The multiple criminal investigations of President Donald Trump are being conducted according to due process of law. Only an unalarming handful insinuate resorting to violence to protest a disliked judicial decision, for example, on abortion, gun rights, or method of choosing presidential electors.
There is no threat of a military coup. The Republican Party is not threatened with a loss of political or economic power in the foreseeable future. There is overwhelming bipartisan unity behind our multi-trillion-dollar military-industrial-complex going abroad in search of monsters to destroy, i.e., to project American military might into every nook and cranny of the planet — even Fiji or the Solomon Islands.
The United States will not perish from civil war. Government of the people, by the people, for the people will perish from permanent, unconstitutional, prohibitively costly, pointless, presidential wars that annihilate checks and balances in favor of a de facto monarchy crowned with limitless power. That endgame cannot be discussed. The craving for raw power by politicians of all stripes blinds them and the American people to what all the world knows. We have made a Faustian bargain in swapping the American Republic for an American Empire.