Jefferson Davis and the Moral Right to Abolish Slavery

Here is a meditation on the question whether Lincoln was, or you would be, morally in the right in using unlawful force against the institution of chattel slavery.

I have been reading, or rather listening to (free librivox.org)  “The Rise and Fall of the Confederate States of America,” written by the president of that ill-starred nation. You will not be surprised to hear that Davis writes with a bias that shines forth from nearly every paragraph. You may be surprised to hear that he is an intelligent, acute, well informed, and occasionally persuasive constitutional analyst.

The first place that the bias shows up is in the early made and frequently repeated refrain that secession was not about race or slavery, but about northern tyranny in the affairs of the south. With this claim front and center, this reader was a little surprised to find out that over 95% of the grievances discussed by Davis in his account of what led up to secession are directly about slavery, its exclusion from some of the western territories and states, failures to return fugitive slaves, and anti-slavery agitation by northern abolitionists. The remaining 5% concern tariffs, trade policy, and other economic issues not directly involving slavery, although having strong indirect ties.

Those who wish to rewrite civil war history to make it center on something other than slavery will find a well spoken ally in Jefferson Davis, but they will be embarrassed by the evidence favoring the other side found page after page in the history he penned.

What did Davis think of the morality of slavery? Mostly he avoided the question, relying upon the evasion that the Constitution had put the issue of morality beyond debate, having recognized the institution in its three fifths of a person clause and having given it protection in the fugitive slave clause. So far as one can tell from the book, which is perhaps not very far, Davis was a middle of the road racist by the standards of his day. He said that the slaves were of an "inferior race." His preferred language for southern slavery was “African servitude,” but it was clearly more a matter of color than of continent. There can be little doubt Davis would have more qualms about holding a light skinned Algerian than a sub-Saharan in slavery. That the Constitution of the Confederacy protected the institution of “negro slavery” everywhere, including new states and territories, makes it clear enough that race was key for Davis and his colleagues. It also underscores how important slavery was in a document that otherwise altered the US Constitution only to give states more rights.

He fully endorsed the view, apparently held by many southern preachers, that the slaves were better off than they had been in Africa. Servitude to their well-meaning owners provided them with productive labor, adequate subsistence, and favored them with the truths of the Christian religion.

In the second volume, it is clear than nothing angered Davis as much, as a violation of the rights of the people of the southern states, as did the emancipation ordinances. That union forces recruited and armed former slaves made him nearly apoplectic. The chief right of the people that he complains was trampled by the northern tyranny was the right to own slaves and when he talks about the destruction of southern institutions by the invader, it is always slavery that is uppermost in his mind.

Davis made the central constitutional issue the right of states to secede for any reason or no reason, and on this point he has persuasive, if not decisive, arguments. There being, today, no serious secession movement in the United States, the right of secession is of constitutional interest primarily as it bears on the question whether a state has a right of nullification – declaring federal law void within its territory. The argument goes that if a state has a right to secede, which would be to nullify all federal law, it must have the lesser right to nullify particular laws. This, of course, does not follow. Even were there a right to secession, the Constitution might be an all or nothing deal. The Supremacy Clause suggests it is at least that. It would make no sense to make federal law the supreme law of the land, and then give each state the right to nullify federal law as it chose. If I read him right, Davis, despite being a strong advocate of the constitutional right of secession, was lukewarm at best on nullification.

Davis's arguments on the nature of what was created by the Constitution are weaker than his arguments on the right of secession. He does not want to grant much (if anything) in the way of sovereignty to the federal entity. He understands sovereignty to lie ultimately in the people, and he argues strenuously that even after the adoption of the Constitution there was no such thing as the people of the United States. There were only the people of Mississippi, Massachusetts, and the other states. (Not included, clearly, in his "consent of the people" arguments were the slaves.)

Davis's interpretation on this point is made more difficult by the very first phrase of the Constitution, “We the People of the United States.” It does not read “We the People of each of the ratifying states” or even as the Constitution of the Confederacy has it “We, the People of the Confederated States, each State acting in its sovereign and independent character.” This latter formulation does at least suggest that there might be no people of the Confederate States, as such, because the people acted through and the individual states and hence, for things touching on sovereignty, are people only of those states.

“The people” appears five times in the Bill of Rights. The natural interpretation in each case is that it is the people of the United States, in their direct relation to the United States, that is referred to, not the people of the states or the people of the states merely added together. The right of the people “peaceably to assemble and petition the Government,” for example, is facially a right that each of us has as a citizen of the United States. Alaskans and Alabamans don't have to assemble separately or sign separate petitions. Davis my not have liked it, but the US Constitution did, even if that of the Confederacy nominally did not, create a new level of peoplehood, citizenship, and sovereignty. The relation of federal sovereignty to state sovereignty is, of course, a complexity giving rise to perennial issues.

The fact that the Constitution did create a sovereign entity and a United States citizenship would complicate Davis's secession argument. The right of a state to secede would carry with it the right of the state to extinguish the United States citizenship of the people of that state. The anti-secessionists of South Carolina, even those who were white, had their US citizenship stripped from them unless they emigrated to a northern state (or joined the Union Army as did many blacks and and a few whites.) In creating a United States citizenship, did the Constitution implicitly leave it a prerogative of a state on its own initiative to take that citizenship away? Could that be consistent with the Supremacy Clause?

Let me put all such issues aside, and assume for the sake of argument that Davis was right about the constitutional right of secession. Other things being equal, then, Lincoln would have had no right to use force to reverse the sessions of the various southern states. The “preserve the union” rhetoric would not suffice, and the “rebellion” rhetoric would be wholly inapt.

Other things, however, were not equal. The confederated states were slave states. The niceties of sovereignty and state self determination might arguably have to give way when they shield the systematic institutionalization of the most egregious possible denial of individual self determination and liberty.

Davis speaks a good deal of liberty, and saw the armies of the Confederacy as engaged in a war for liberty. The liberty of the slaveholders to do what they would with their property ranked high among those liberties to be protected against northern tyranny.

We, of course, strike a very different balance between the liberty of the slave and the property rights and liberties of the slaveholder. What I am going to argue is that the balance is so different that otherwise illegitimate force may morally be used against slavery.

Take yourself in a time machine back to the antebellum south and equip yourself with some very powerful weapon, garnered, perhaps, by running your time machine in the opposite direction. Suppose that your weapon will inflict severe pain lasting for several hours on its targets. It is a weapon after the tradition of a smart bomb only very much smarter. It is so smart that it can be programmed to target all and only slave owners. Well, it may miss some, but it will have almost no false positives. You also have, from the same source, a device that turns ordinary air into a loudspeaker. This permits you to speak to the entire south at one time. Using this device, you give the warning that unless all slaves are released within a week, all persons remaining with slaves in their possession will be subject to agonizing attacks of whole body pain.

We can anticipate, I think, that some very few slaves might be freed immediately after the warning, the very occurrence of which would have been regarded as either miraculous or demoniacal. In fact, if you prefer serious deception and blasphemy to physical intimidation and torture, you might announce through your universal broadcasting device that you were God and that you commanded a freeing of all the slaves. (In addition to its dishonesty, this expedient has the disadvantage that a fair majority of the southern clergy would probably be prepared to argue that the message could not possibly be from God because the Bible was unambiguously pro-slavery. The message must really be from the devil, or from those disciples of the devil called “abolitionists.”)

Disbelief in your threat would, in any event, be widespread despite the unaccountable nature of its delivery. After the first day on which a significant percentage of the population were stricken by severe attacks of myalgia we would anticipate the beginnings of a real movement to release slaves, which would grow as news spread that the phenomenon was not limited to the local slave owners, but was endemic. No doubt, some would try to find loopholes, signing legal documents, but changing nothing in real life – continuing to use the slaves as if no papers had been signed. Your smart device being too smart for this, however, the word would soon spread that evasion did not work, and that the slaves would really need to be freed if the owner was to avoid those episodes of complete agony. People are remarkably flexible in their behaviors when it comes to avoiding agony.

The question is, would it be morally permissible for you to end slavery in this way? Your action would be unlawful in every respect. You would be violating criminal law on a massive scale. Necessity or “lesser evil” defenses as traditionally understood are far too narrow to provide you a defense of justification. In addition, you have no sort of authority derived from any source even claiming legitimacy.

I am not going to go any distance into the question whether you are morally prohibited from intimidating and torturing slaveholders on the theory that “the ends can never justify the means.” This is a not very accurate way of putting the “deontological” position that sees moral principles as trumping good consequences. Many deontologists entertain, at least by footnote, the possibility of a “catastrophe override,” which permits the use of an otherwise prohibited means if it obviates a sufficiently great evil. If a toddler is two seconds away from stumbling onto the doomsday trigger and you are 100 meters distant with nothing but a howitzer, the catastrophe override on deontology may permit you to blow the tyke away.

I find it hard to come up with a theoretical justification for deontology without a catastrophe override, and for that reason, and because slavery was a catastrophe sufficient to trigger the override, I am going to assume that, insofar as there is anything to the slogan “the end doesn't justify the means” it does not preclude you from using your time machine and associated paraphernalia to end slavery.

Away from the main course of the argument, I want to make a substantial caveat. I am not here justifying the real world use of torture; nor can anything like the argument I am making do so. Yes, in the purity of philosophical thought experiments, torture is sometimes permissible. In the real world, a means as extreme and as universally condemned as torture has to overcome an effectively insurmountable burden of empirical proof that it will work, that nothing less egregious will, and that the fallout for the reputation of the torturer will not in the long run outweigh whatever might be gained by the torture.

Back within the thought experiment, you are cloaked with not even the thinnest mantle of legitimacy, in using unlawful force against private persons. You are doing so to end an institution supported by, arguendo, legitimate states (remember we are assuming Davis right about secession). Those states are supported by a clear majority of their citizens, and even, at least for some of the confederate states, a majority of their population. How can you presume in this extraordinary way against legitimate, and not horribly, horribly undemocratic states?

A legitimate state has a right to be wrong within a fairly broad range of policy decisions. The more the state, through genuine democratic mechanisms, reflects the choices of all of those subject to the decisions, the wider the scope of its right to be wrong. At least short of the ideal case of unanimity of a fully informed population, however, there is always a limit on the right of even the majority expressed through a legitimate state to be wrong. A little wrongness licenses protest, greater wrongness licenses unlawful resistance, and with wrongness beyond that comes a right of revolution. Slavery was supported in the Confederacy by a very imperfect form of democracy, but even had the democracy been a good deal more robust, that would not have made revolution morally impermissible.

So, if you, as private individual without portfolio, could morally have used torture and the threat of torture to end slavery, the conclusion is not hard to reach that Lincoln could use force as well. His case was better than yours in that he had, at least, pre-existing morally significant ties to those residing in the seceding states who wished to retain their relation to the United States. They were part of the “people” for whom he was obligated to seek “the Blessings of Liberty.” The methods he used, unlike those you used with your time machine, were generally recognized by the community of nations.

There are two objections that apply to Lincoln, but not to you. First, you acted to end slavery. Lincoln acted primarily to keep intact the union. Yet, the secession, first of South Carolina and then of the other states, really was intimately tied to slavery. It was Lincoln's uncompromising attitude against the extension of slavery in the west that triggered the secession movement before he was even inaugurated. Lincoln's use of force was from the beginning enough about slavery to justify it even more clearly than you were justified in using your time machine.

The second objection is that you did not take an oath to uphold the Constitution; Lincoln did. On the assumption I have been entertaining throughout that Jefferson Davis was right about the constitutional right of secession, didn't Lincoln violate his oath by forcibly terminating the secession of the southern states? Is it moral to violate so important an oath?

I think Lincoln had available here an argument from conflicting constitutional obligations. Even had the states a right of secession, he did not violate his oath by forcibly putting these particular secessions to an end. That argument, however, would would threaten to become both too subtle and too convoluted. I omit it.

Better, I think, to take the bull by the horns and say that Lincoln would have been morally justified in violating his oath of office in conducting a military campaign that, if successful, would inevitably limit slavery substantially, and that, in fact, led to slavery's abolition. Promises are important. Promises reinforced by the high symbolism of inaugural oaths and the standing of a legitimate state are of very great moral weight. But even the weightiest of promises can be morally overcome. When slavery is on the other side of the scale, it is not so easy to find anything that outweighs it.