This is a repost, with slight modifications, of a piece posted December 18, 2015.

The War Between the States; War of Northern Aggression; Second American Revolution; War of 1861; War for Southern Independence; Mr. Lincoln’s War; American Civil War; Civil War; or simply, the War.

These are some of the names that have used to describe the military conflict in the United States between 1861 and 1865.  The War of the Rebellion – the official name of what most Americans refer to as the Civil War – is the subject of many books.  In some book stores, there is a section called U.S. History and a separate section called The Civil War.  The Civil War holds a special place in American history.  This is not surprising given that the war produced over 600,000 casualties, more than all other American wars combined.  Also, the divisions in the country then, which helped ignite the conflict, still exist today.  The cultural differences between the North and the South are still with us.  The sectional political differences that existed then persist to this day (most states in the South are reliably “Red” and most states in the North are reliably “Blue”).  And, of course, the racial divide, which often meant the difference between bondage and freedom early in our history, has not quite healed.

The different names referring to the conflict also, in some ways, reflect the differing in the reasons and perspectives for the conflict.

Ask random people why there was a war, and you will invariably hear “slavery” was the reason.  Some will cite “state-rights” as the core issue.  A few will even point to “the tariff” as the cause.  It is quite telling that Americans cannot quite agree on what caused a national crisis that resulted in Americans taking up arms against each other for four long years.  This lack of clarity is one reason of many reasons why there have been so many books written on the subject and continue to be written.

The question of why there was war between the two regions is one worth answering.

In November 1860, American voters went to the polls and elected the Republican Party nominee President of the United States.  The presidential nominee, Abraham Lincoln, was the country’s first Republican president.  Both houses of Congress were also controlled by the Republican Party.  The party was only six years old, having been founded in Wisconsin in 1854.  Wisconsin, itself, had only joined the Union six years earlier.  The Republican Party had been put together by former Whigs, Free Soilers, and a few Democrats.  The new party had adopted most of the platform of the Whigs, namely, economic protectionism and modernization.  The Republican Party had also adopted the position that it wanted to stop the spread of slavery within the United States.

To many in the Southern states, this must have been quite shocking.  A brand new party; with no base of support in the South; founded by abolitionists; opposed to the spread of slavery; formed in a relatively new state, so far north it may as well been part of Canada, had just taken over the U.S. government.  It is no surprise that several of the Southern states would announce their intentions to leave the Union.

The consensus of the rest of the country was that the nation breaking apart would be a bad thing.  It could easily set the precedent of other states wanting to leave the Union.  It would also suggest that the experiment of self-governance did not, and, perhaps, could never work.  Abraham Lincoln did not want to be the president that presided over the dissolution of the United States of America.

The South, led by Jefferson Davis, wanted to leave the Union and was willing to use military force to achieve this goal, since it was not in its interest to stay.  The North, led by Abraham Lincoln, wanted to keep the country together and was willing to use military force to do so, since it was not its interest for the South to go.  “And the war came.”

The intentions of the South warrant closer scrutiny.  In 1861, Lincoln stated in his inaugural address that he would not interfere with the institution of slavery where it already existed.  Lincoln also tacitly approved in the same address a proposed amendment to the Constitution (Corwin Amendment) that would prevent any future amendments from interfering with the institution of slavery.  These concessions would not deter the Southern states from their intentions to leave the Union.

Why did Lincoln’s words not reassure the South?  Why would the Southern states risk war by attempting to secede?  What did Southerners fear?

One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war.

Lincoln, Second Inaugural, March 4, 1865

Those three sentences in Lincoln’s 1865 address may provide useful clues.  First, in reference to slavery itself, Lincoln acknowledges that the institution was somehow the cause of the war.  He seems to be saying that slavery had something to do with the conflict but may not have been the primary cause.  Second, it may be helpful to refer to the census of 1860.  South Carolina, the first state to announce its intention to leave the United States, has a slave population that represents 57% – an absolute majority – of the total residents of the state.  Mississippi, the second state to announce its intention to leave, has a slave population that represents 55% – also an absolute majority – of the total residents of its state.  The next four states to announce their intentions to leave were Florida, Alabama, Georgia, and Louisiana.  Those states had slave populations as a percentage of their entire state of 44%, 45%, 44%, and 47%, respectively.  It is almost the case that the higher the slave population percentage, the sooner the state announced its intention to secede from the Union.  The other clue in Lincoln’s address was that one-eighth of the whole population were colored slaves.  Had the slaves been Irish or French, there probably would not have been a war.  It is very likely that the people of the South were less in love with the institution of slavery but more in favor of keeping the United States a white nation.  Had the slaves been white or some other non-black race, in the face of war, slavery may have ended sooner and without bloodshed.  Since the slaves were black (or “mulatto”) and clearly ethnically different from American whites, it would not have been in the interest of Southern planters to free those in bondage because it could have meant sharing or surrendering political power and resources with those easily identified as former slaves.  This may have led to intermarrying with individuals whose ethnic features would have been difficult to breed away.  Fearing the emergence of a “mongrel” race that could have real political and economic power was of concern to Americans, particularly those in the South.

Slavery ultimately became a tactic to control those of African descent in the (Southern) United States.  We know this because shortly after the war ended, Southern legislatures passed laws that were known as “Black Codes” and these laws were a tactic designed to control the conduct of those of African descent in the (Southern) United States.

The Reluctant Conservative believes that for the American South, secession and war were about race and national identity.  Since blacks were mostly localized in the southern part of the nation, Southerners were far more concerned about demographics than their northern counterparts.

On this 150^th anniversary of Secretary of State William Seward issuing a proclamation of the ratification of the Fourteenth Amendment, which, among other things, extended U.S. citizenship to the former slaves, it is worth revisiting how the amendment came to be.

On this day 150 years ago, the people of the United States formally welcomed five million of the nation’s residents into the American family.  That day would mark the end of a long and brutal pathway to citizenship.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Justice Anthony Kennedy announced on Wednesday that he will be retiring from the bench, effective July 31.  President Trump is expected to nominate his successor by July 9.  The Senate Committee on the Judiciary will hold hearings on the nomination in the coming weeks.  Assuming the nomination moves out of the Committee, the full Senate will vote to decide whether to approve the nomination.  Among those voting will be the Republican Caucus’s most liberal member, the senior Senator from Maine, Susan Collins.

Senator Collins (R-Maine) stated on This Week with George Stephanopoulos on July 1, 2018, that the most important quality in a potential justice for the U.S. Supreme Court is respect for precedence.

I believe I am in good company in believing that the most important quality in a potential justice would be fidelity to the Constitution of the United States.  After all, the justice upon taking office would pledge an oath to God to support and defend the U.S. Constitution, NOT to support and defend prior rulings of the Court.

The issue for Senator Collins is not fidelity or respect for precedence; it is the abortion rulings from 1973 (Roe v. Wade) and 1992 (Planned Parenthood v. Casey).  She does not want these rulings, which guarantee a Constitutional right to an abortion, overturned.

It is fine for Senator Collins to have this opinion, but she ought not hide behind the legal doctrine of stare decisis (stand by matters decided).  The fact that abortion is not mentioned in the Constitution or that the legal reasoning behind both abortion decisions is legally shaky does not seem to matter to her.  As a member of the legislature, she does not seem troubled that the Court, in both cases, made law in violation of the separation of powers principle.

Had the Court come to opposite outcomes in 1973 and 1992, where not only does the Constitution not guarantee the right to an abortion, but stated that under the Fourteenth Amendment, an abortion would be the taking of a life without due process of law — thus making abortion unconstitutional — would the Senator be arguing for the respect for precedence?  I suspect not.

We should be careful about this issue of precedence.  It is true that stare decisis does promote stability in the law.  However, stability that does violence to the Constitution is not stability that should be respected.

In 1896, the Court issued its decision in Plessy v. Ferguson, which upheld the “constitutionality” of racial segregation and institutionalized the doctrine of separate but equal.  That decision was effectively overruled in 1954 – 58 years later — in the Brown v. Board of Education case.

As of this writing, Roe v. Wade is 45 years old.  Senator Collins believes that, given the longevity of this ruling, it should be considered “settled law” by any future Supreme Court.

Question: Does Senator Collins, using her own standard, believe that the Supreme Court was wrong to unanimously overturn the 58-year-old separate but equal doctrine in 1954?  I suspect not.

During her This Week interview, Senator Collins laid out the following as important qualities that a Supreme Court justice should have: judicial temperament, integrity, intellect, experience, qualifications, fidelity to the rule of law and the Constitution.  She also said, “most important of all” respect for precedent.  All the qualities she lists are important, but she is wrong that the respect for precedent should be the most important consideration.

When Senator Collins votes on the nominee, she ought to consider each of the traits she mentioned; however, the commitment to precedence should get diminished consideration.