April 21, 2005

by Joe Sobran

[Originally published by the Universal Press Syndicate, 
June 9, 1998]

     In most teaching about the American Civil War, the 
pupil "learns" that there was a necessary association 
between slavery and secession. The war ended happily, he 
is told, because slavery was destroyed and the Union was 

     But there was no inevitable connection between 
slavery and secession. In fact, the first secessionists 
were Northern abolitionists who wanted no part of a Union 
that tolerated slavery. They just didn't acquire enough 
influence to persuade their fellow Northerners to declare 
their independence.

     Suppose they had. Suppose New England had pulled out 
of the Union in indignation over slavery. Suppose the 
remaining states had declared war in order to save the 
Union, and after a bitter five-year struggle, costing 
nearly a million lives, New England had been conquered.

     Then what? History might record that the victorious 
Union took a fierce revenge by occupying, looting, and 
setting up puppet governments in New England for several 
years; furthermore, that it also amended the Constitution 
not only to protect slavery in the South, but to extend 
the right to own slaves to every state and all U.S. 

     In that case, "saving the Union" might not seem such 
a wonderful thing. It would have come at the price of 
saving slavery. The causes of Union and slavery would 
have been synonymous for later generations.

     A more chilling thought is that the Union victory 
over New England might not only have saved slavery, but 
conferred moral legitimacy on it. Abolitionism might be 
associated with those nasty rebels who tried to destroy 
the Union, and slavery with the cause of patriotism! To 
the victor belong the spoils -- including, to a great 
extent, the moral sense of the population.

     Both sides in the actual Civil War were engaged in 
subjugation. The South was protecting chattel slavery; 
the North was denying the right of secession on which 
this country was founded.

     At the time the Constitution was adopted, several 
states, including Virginia and New York, ratified it on 
the express condition that they might withdraw from the 
Union at any time they deemed it in their interest to do 
so. This was in keeping with the Declaration of 
Independence, which says that people have both the 
"right" and the "duty" to "alter or abolish" a government 
destructive of their rights.

     Nobody at the time challenged these states' claim to 
a right of secession. Not only did the Declaration 
support them; as a practical matter, nothing could stop 
them. The federal government was too weak.

     The Civil War established that the federal 
government had grown strong enough to prevent and punish 
any independence movement. From then on, no state could 
secede for any reason, no matter how tyrannous the 
federal government might become.

     The military ratio has widened enormously: today the 
states still have rifles, but the federal government has 
a nuclear arsenal. Nobody talks about secession (at least 
not very loud).

     This is what makes it possible for the federal 
government to dictate to the states. If the Union were 
still voluntary, the Supreme Court wouldn't dare, for 
example, to strike down the abortion laws of all 50 
states, because many of those states would have seceded 
immediately after such an outrageous usurpation of their 

     Ah, but we no longer speak of federal "usurpation" 
-- and why not? Because the powerful can change even our 
moral sense, unless we are extremely vigilant. So most of 
the country has accepted as legitimate the court's claim 
to authority over state abortion laws.

     As Andrew Jackson once said of Chief Justice 
Marshall, "John Marshall has made his decision -- now let 
him enforce it!" Translation: The power to interpret the 
law is meaningless without the power to enforce it. If 
only the federal government can enforce the Constitution, 
only the federal government can interpret it.

     So, as a practical matter, there is no longer any 
such thing as a federal "usurpation" of power. Nobody can 
enforce the Constitution against the federal government, 
so why bother trying? Which makes the Constitution pretty 
useless for the purpose of limiting that government.

     When you look back on a famous victory in any war of 
the past, don't be too sure the right side won.


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