The Former Confederacy 

  December 4, 2003

An extremely bright high-school student recently asked my advice about a few points concerning the U.S. Constitution. At 15, he was raising questions that didn’t occur to me until I was well into middle age. Maybe, I thought, this lad should be advising me!

But, accepting the role of wise elder in which he had cast me, I recommended a short curriculum, which I now offer to anyone who wants a corrective to the false history Americans are taught in government (as well as most private) schools. It may look simple, but I promise you’ll find it challenging.

First, three official documents: the Declaration of Independence, the Articles of Confederation, and the Constitution (with the Bill of Rights and the Preamble to them). Learn them thoroughly, until you see how closely the Constitution resembles the Articles and how both documents presuppose the Declaration.

Second, the debates over the ratification of the Constitution. This means The Federalist Papers, but also a generous sampling of the anti-Federalist writings, of which there are many collections in print. (Three are listed on the Links of this website.)

Third, Thomas Jefferson’s 1798 Kentucky Resolutions. These are brief but remarkably logical and incisive. They tell you how the author of the Declaration understood the Constitution. No document in American history has been more undeservedly neglected.

Finally, the most challenging of all: Jefferson Davis’s Rise and Fall of the Confederate Government. You needn’t read all 1,200 pages, but you should master the 100 or so pages making the case for a state’s constitutional right to withdraw from the Union. You may pass over Davis’s defense of slavery, which is incidental: his argument for the right of secession applies in principle to every state, not just the Southern states.

If cogent, this means that the U.S. Government abandoned constitutional government long ago. It also means that, say, Massachusetts and Hawaii still have the same right to withdraw from the Union that Virginia claimed in 1861.

You may be surprised to learn that Washington, Jefferson, and other Founding Fathers took the right of secession for granted. Probably not one American in a thousand is aware of this today. But it was inherent in the Declaration’s proposition that the original colonies “are, and of Right ought to be, Free and Independent States.”

This is what Abraham Lincoln actually denied when he said that no state could leave the Union. Unlike Lincoln, Davis wasn’t even a lawyer; yet his grasp of law and history was far wider and deeper than Lincoln’s.

After the Confederacy was conquered, Davis was arrested and held in solitary confinement for two years on a charge of treason. But in the end the government dropped the charge and released him, having been warned by its own lawyers that Davis, defending himself in court, might well win acquittal by making a powerful case for secession — and thereby dealing a terrific blow to Union war propaganda. The intended show trial might have backfired — with Davis summoning the Founding Fathers themselves as his star witnesses!

It was a prudent decision. To this day, Union propaganda passes for objective history. But in fact so many Northerners agreed with the South — and with the Founding Fathers — that Lincoln had found it necessary to suspend the freedom of speech, the free press, and the ordinary rights of accused persons to habeas corpus and a jury trial. Dissent became a crime, and truth itself a fugitive.

But Lincoln’s crackdown — so comprehensive that the McCarthy era can’t remotely compare with it — succeeded. The North was deeply divided about his war, but effective criticism and opposition were crushed. Lincoln won reelection, the war, and a historical reputation for midwifing “a new birth of freedom.”

The long-term result has been the eclipse of the original understanding of the Union as a voluntary “confederacy” of sovereign states. Today that idea is regarded as a merely regional doctrine of the South. It was not. It was an idea once agreed on by virtually all Americans. Even Lincoln himself sometimes spoke of the Union as “this confederacy.”

It’s startling to see how often the United States were called a “confederacy” in the speeches and letters of presidents before Lincoln. His supreme achievement may be a feat of historical obliteration: he consigned America’s original self-understanding, perhaps irrecoverably, to the Memory Hole.

Joseph Sobran