John G Bell


Fall '03 – Gomez & Unsel

Response Paper

Free Labor, Free Soil: An Economic Interpretation of the Civil War

A. Synopsis

The Civil War was the result of the failure of mediation between extreme views. Economic and social positions became increasingly entrenched and resolute in opposition to each other. These irreconcilable differences were primarily about economic advantage and the distribution of political power in the still new nation. In spite of the appearance that the Civil War was fought over the issue of slavery, this was, in fact, merely the last divisive issue over which to take sides. The issue of slavery as an institution was eventually an element of the conflict in most minds, but only after the gloves were off and this was essentially the last compromise left to break. In spite of efforts to the contrary, the failure of mediation, in this sense, led to the greater social goods of emancipation and toward, a still not entirely realized, universal suffrage.

B. Response

The entirely wishy-washy conclusion of All The Laws But One suggests that the evidence does not support the author's desired thesis, begs the question he explores with a tautological conclusion and verges on a strawman fallacy. Rehnquist summarizes by saying, “The laws will thus not be silent in time of war, but they will speak with a somewhat different voice.” [Rehnquist p225] This conclusion is a not a strong pronouncement in support of Lincoln's criticism of Taney's interpretation of the Habeas Corpus Act, from which the title of the work is derived. [Rehnquist p38] In fact, even this early in the work Rehnquist, in his admiration of Lincoln's style as an advocate, recognizes that this criticism side-steps the “difficult constitutional issue.” [ibid.]

Rehnquist's desired thesis appears to have been that the suppression of civil liberties in times of war are a natural and expected part of the change from civil rule to a period of martial rule. Rehnquist, like Lincoln, side-steps the criticisms he presents to his thesis by saying, in essence, that since martial rule naturally happens, on occasion, that the civil rule must recognize this trend and accept the loss of liberties. However, there were very strong words by many voices in this work criticizing the slide toward loss of liberty. Examples are Black's comments against putting the law into the hands of the military [Rehnquist pp124-125]; Garfield's statement that a doctrine of suspending civil liberties “is too monstrous to be tollerated ...” [Rehnquist p123]; or Louailler, in response to martial rule in Louisiana, saying, “... we do not feel much inclined, through gratitude, to sacrifice any of our privileges ...” [Rehnquist p69]

Rehnquist begs his own question of the validity of martial rule, resorting to a kind of appeal to necessity to justify the means when he says, “Whatever the theory of martial law might be, its consequences [...] were quite apparent ...” [Rehnquist pp73-74] In other words, the author wishes wave us away from the question of validity, and move on to examining the result. This tautological statement of how martial rule is different because it is different than civil rule seems to be the place from which Rehnquist's conclusion that wartime law “will speak with a somewhat different voice.” [op. cit.]

Unfortunately, even the result of each case is not quite so strong as the author appears to intend. In each case of martial rule and loss of liberties, the author manages to show that hindsight heaps abuse on these acts justified by necessity. I fear that, in an attempt to show an appearance of impartiality toward his desired conclusion, Rehnquist provided more compelling evidence against his case than he could in the affirmative. This is reflected in a conclusion that is so weak as to be almost meaningless.

The end game, by implication, appears to be that Chief Justice Rehnquist wishes to say that if the civil rule cannot abide by loss of liberty, then martial rule will be required to make that hard choice for us, against us, as citizens. However, he most strongly makes the case that these inconvenient to wartime civil liberties are all that more important. I'm left thinking not that civil liberties are a luxury of peacetime, but that there needs to be positive protection of Habeas Corpus as an amendment as part of the Bill of Rights in order to clearly protect against the slide from an ambiguous status of civil liberties in wartime toward martial rule out of necessity.

C. Question

Previous to this class, I've felt that the Bill of Rights should be strengthened by including positive protections against a standing military during peacetime and from the government granting monopoly powers. These, in fact, were key points on one of my final presentations last year. Now, I'm of the mind that Habeas Corpus and the guarantee that citizens be tried in civil courts should be protected by positive amendment. But what about the rest of the world? Should not our rights, alleged to be universal and unalienable, be provided positively to the rest of the human population?