The Legacy of the US Civil War

Ta-Nehisi Coates has an excellent article in the Atlantic about the legacy of the US Civil War. He argues that black Americans ought to honor that war in the same way that white Americans honor the Revolutionary War: as that which established a certain independence and began the conferral of basic human rights. For although the Declaration of Independence refers to “self-evident truths,” courts generally don’t respect an argument from such a premise. Self-evident though they may be, such truths do not become conferred rights until a kind of authority, which in many cases is a state, establishes this in fact. And while many, many steps still needed to be taken after the Civil War, it is nonetheless this event that made the 14th Amendment inevitable and so enshrined in law the equality of all men.

But of course there was a loser in this war – or, to be more precise, there were losers. These losers made up a large percentage of the US population and constituted a large geographic chunk of the country. And it’s never advisable to gloat and exact too great a financial or other reparation on the loser. As WWI teaches, such practices lead only to more animosity and more violence. While certain identifiable villains may and often should be called to account for crimes committed, it is also the case that reconciliation goes a long way toward establishing peaceful future dealings between former antagonists. The lesson of South Africa comes to mind here. Somehow, and awkward as it may be to take the example of WWII, while Himmler (had he lived of course) ought to have been tried in open court, if every member of the Nazi party had been tried, well, then post-war rebuilding and peaceful future relations between Germany and the international community would never have materialized. The lesson of L. Paul Bremer and the handling of the Iraqi army and the Baath party in 2003 are the guideposts here. There’s a line in the sand somewhere, more for practical than for ethical considerations, and it includes more people than no one and fewer people than everyone. If you want to hold all those responsible to account, then, in many important instances, you will no longer have a country to recreate.

What does this have to do with the Civil War? It’s not as if Robert E. Lee was tried for his role in upholding the institution of slavery, even though that is of course exactly what he did. It’s tricky here because in the 1860s there were few, if any, jus cogens, i.e., internationally agreed upon norms. At the time, international norms still flew in the tailwind of the Treaty of Westphalia and so covered things like the principle of sovereignty and the principle of unobstructed diplomatic exchange. Human rights and, more to the point, who fell within the extension of the term “human,” had yet to be formally recognized. Furthermore, under US law slavery was completely legal. The malum in se had not yet become a malum prohibitum.

It’s interesting to note that when Lincoln did finally get around to freeing the slaves, he only did so in those territories which had not yet been conquered by US forces. Like all humans, Lincoln was complicated (as an attorney he defended both slaves and slave-owners); but it seems quite obvious that in this instance the principle of reconciliation was applied too generously.

But if Lincoln was too generous in allowing the earliest conquered southern territories to continue with “the peculiar institution,” which is to say if he was too generous in his conferral of reconciliation, then so too has the dominant historical legacy of that war been mal-taught in an effort to uphold the principle of reconciliation. As Coats notes, while the Civil War was fought over slavery, the dominant story would have us believe that the war was really about internecine conflict and differing interpretations of the role of the federal government versus that of state governments. Not only is this disingenuous, it is an incorrect reading of what happened. In an effort to not overly-burden the legacy of dixie, Americans have decided to speak of the Civil War as a family conflict over conflicting political configurations. But it wasn’t. It was about slavery. But if this truth is acknowledged, then somehow the legacy of the south is called into question and reconciliation cannot happen. The problem with this reading is that it conveniently edits out the millions of black Americans who definitionally moved from property to human in the process.

A war over states’ rights, a war of economics, it doesn’t matter how your frame it, the awful truth in the background remains: prior to the war black Americans could legally be bought and sold; after the war they could not. And even if we were to concede that the war was about states’ rights, then surely we must admit that it wasn’t about states’ rights per se. It was about the right of states to extend the definition of property to actual humans.

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