Trump's Martial Law in a New Civil War?

                                                            The Portland "War Zone"

In previous posts, I have argued that Trump's biggest mistake was following the recommendations of Leonard Leo and the Federalist Society in his judicial appointments because judges who are constitutional originalists and textualists will not support Trump's claim that "as President, I can do whatever I want to do"--that is, become a dictator unconstrained by law.

The most recent case illustrating this point came just a few days ago--State of Oregon and the City of Portland v. Donald Trump et al.  On Saturday, U.S. District Court Judge Karin Immergut issued a temporary restraining order halting Trump's deployment of National Guardsmen to Portland, Oregon, as an unconstitutional act.  She declared: "this is a nation of Constitutional law, not martial law."  To show that the American Founders feared the sort of military tyranny that Trump is now launching, she quoted from James Madison at the Constitutional Convention: "A standing military force, with an overgrown Executive will not long be safe companions to liberty.  The means of defense against foreign danger have been always the instruments of tyranny at home."

Remarkably, Judge Immergut was appointed to her position by Trump in 2019.  But now Trump says "to have a judge like that, that judge ought to be ashamed of himself" (strangely referring to her as a man).

As in so many previous cases, Trump is being frustrated by judges he appointed because their jurisprudential originalism and textualism deny his claims to dictatorial power.  If Trump were smart, he would scorn conservative jurisprudence and argue for a "living constitution" that allows the president to rule as a king above the law.

Judge Immergut's case involves Trump's order on September 27, 2025, directing Pete Hegseth to provide troops to protect "War ravaged Portland" from "Antifa, and other domestic terrorists" and authorizing "Full Force, if necessary."  Hegseth authorized the deployment and federalization of 200 of Oregon National Guard service members to be sent to Portland, even though Oregon's Governor, Tina Kotek, objected.

Under the Militia Clause of the U.S. Constitution, Congress has the power "to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions" (Art. I, sec. 8, cl. 15).  In the Militia Act of 1792, the Congress first delegated this Congressional authority to the President to call forth the militia in extraordinary circumstances.  The modern version of that law is the Militia Act of 1903, which today is codified as 10 U.S.C, sec. 12406, which says that the President may federalize National Guard service members if:

(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of rebellion against the authority of the Government of the United States; or

(3) the President is unable with the regular forces to execute the laws of the United States.

In this case the Defendants (Trump et al.) argued that Trump's military mobilization for Portland was authorized under the second two conditions: there was "rebellion or danger of rebellion against the authority of the Government of the United States" in Portland, and the President was "unable with the regular forces to execute the laws of the United States" in Portland.

Judge Immergut employs a strict textualist standard to rebut the appeal to "rebellion."  She asks how would the Congress have understood the term "rebellion" in 1903 when it passed the Militia Act of 1903?  Drawing from a previous case, where the court surveyed four dictionaries from the late 1800s and early 1900s, she states this definition:

First, a rebellion must not only be violent but also be armed.  Second, a rebellion must be organized.  Third, a rebellion must be open and avowed.  Fourth, a rebellion must be against the government as a whole--often with an aim of overthrowing the government--rather than in opposition to a single law or issue.

By that definition, Judge Immergut concludes, the protests in Portland were not a "rebellion."

She also concludes that the history of the protests in Portland from June to September do not show that the President was "unable with the regular forces to execute the laws of the United States."  She surveys the record of the protests in Portland to show that while the disruption outside the Portland ICE facility peaked in June of 2025, federal and local law enforcement quelled the disorder.  And, more importantly, as of September 27, 2025, when Trump issued his order, there had been months without any serious level of violent or disruptive protests in Portland.

Trump said that Portland was "War ravaged," and there was "lawless mayhem" and "Chaos, Death, and Destruction."  But Judge Immergut observed: "The President's determination was simply untethered to the facts."

Federal judges have said that in such cases, the courts must show "a great level of deference" to the President's judgment.  But still, the courts must "review the President's determination to ensure that it reflects a colorable assessment of the facts and law within a range of honest judgment."

In this case, any reasonable assessment of the history of the protests in Portland over the three months before Trump's order on September 27 do not support his claim that "War ravaged Portland" required federal military intervention.

TRUMP'S CIVIL WAR?

It is easy to predict, however, that Trump will soon employ a new legal maneuver to justify his imposition of martial law on cities and states that he sees as under the control of Democrats and thus constituting "the Enemy Within"--in other words, his political opponents.

He will invoke the Insurrection Act of 1807.  Here's the crucial clause:

 An Act authorizing the employment of the land and naval forces of the United States, in cases of insurrections

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.

In 1861, at the beginning of the Civil War, a new section was added to allow the President to use the militia (the National Guard) and the regular military forces against the will of state governments in the case of "rebellion against the authority of the government of the United States."

We can foresee that Trump will declare that states like Illinois, Oregon, and California are in rebellion against the government of the United States, and therefore he will launch a full military invasion of those states.

We will then see whether the courts can stop him.

But the ultimate question is whether the U.S. military will obey his orders.  When they are ordered to kill Americans protesting Trump's dictatorship, will they obey?

Previously, I have written about how in the last two months of his first term, after he had lost the election, Trump did not have the guns or the guts for becoming a military dictator.  He did not have the guns because military leaders such as General Mark Milley (Chairman of the Joint Chiefs of Staff) made it clear that they would not allow the military to support a presidential dictatorship.  And he did not have the guts because he lacked the courage to assert his dictatorial will in violation of the Constitution. 

But now it might be different because Trump is surrounded with sycophantic loyalists eager to obey his every whim.

We can hope that the U.S. military will resist.  A few days ago, when Hegseth and Trump gave their political speeches (for over two hours) to all of the top U.S. military leaders from around the world gathered in Quantico, Virginia, there was no applause from the audience, and Trump was clearly disturbed by that silence.  That's a good sign of resistance.

Another good sign is that when ICE has tried to prosecute protesters for harassing them, grand juries are refusing to indict.  This has already happened in Washington, D.C., Illinois, and California.  It is also possible that even if indicted and taken to trial, people resisting ICE can expect that juries will refuse to convict them.  Jury nullification has a long history in America as a way for citizens to impede unjust laws and governmental misconduct.  For example, this was one way that citizens resisted the enforcement of the fugitive slave laws before the Civil War and thus protected runaway slaves from being captured.

Trump and his people could evade this constraint of jury nullification by suspending the writ of habeas corpus, which would allow them to arrest and imprison anyone--to "disappear" them--without having to give any legal justification.  This would be the ultimate suspension of all individual rights.  Stephen Miller has proposed this.  That would be a police state.

Trump and the History of Fascism: He Cannot Take Power by Majority Vote or by Force

The Roman Fasces, A Symbol of the Authority and Unity of the Ancient Roman State

\

                                 The January 6th Insurrectionists Storm the Capitol Building

Is Donald Trump a fascist?  If he is, does the history of fascism help us to predict whether he is likely to take power as a fascist ruler?

My answer to the first question is Yes.  My answer to the second question is that the history of fascism tells us that fascists cannot take power by majority vote or by force, because they need to be given power by conservative elites.  For Trump to become a fascist ruler, he would have to be put into power by the political and military elites.

THE CONCEPT OF FASCISM

Since he is one of the leading historians of fascism, Robert Paxton has often been asked whether he identifies Trump as a fascist.  Up to the end of Trump's term as president, Paxton said No.  But on January 6, 2021, as he watched the Trump-inspired insurrection on Capitol Hill, which was meant to overturn the election of 2020 and keep Trump in power, he changed his mind.  A few days after the insurrection, he wrote an essay for Newsweek explaining how that insurrection was the final piece of evidence pointing to Trump's character as a fascist.

We now have even more evidence for that conclusion coming from General Mark Milley, who was Chairman of the Joint Chiefs of Staff during Trump's presidency, and retired General John Kelly, who was Trump's Chief of Staff for almost a year and a half.  They have reported that Trump wanted to use the military against his political opponents and that he expressed his admiration for how Hitler had used his generals.  Both Milley and Kelly told Trump that their oath to uphold the Constitution would take precedence over their loyalty to the President.  And both concluded that Trump was a fascist.

Paxton's position in the debate over Trump's fascism is unusual.  There are two questions in this debate.  Is Trump a fascist?  And is it helpful to identify him as a fascist?  Most people in the debate either say yes to both questions or no to both.  As he told the New York Times, Paxton says yes to the first question but no to the second.  Yes, Trump is a fascist.  But no it doesn't help the debate to say that, because "fascist" is "a word that generates more heat than light."  

I agree that most of the time "fascist" is a sloppy epithet that we throw around to express our moral disgust with someone we disagree with strongly, and therefore using that word enflames emotions without clarifying the debate.  But when a historian of fascism like Paxton says that Trump is a fascist and explains the exact similarities and differences between Trump and fascists like Mussolini and Hitler, that illuminates the debate by showing how the history of fascism might explain and predict Trump's behavior.

Recently, Trump has said that he is planning to use military force against the "enemy within," which includes "bad people" like Nancy Pelosi and Adam Schiff.  This convinced John Kelly (Trump's Chief of Staff from July 2017 to December 2018) that he needed to speak out, and he was interviewed by the New York Times.  Kelly read aloud a definition of fascism:

"Well, looking at the definition of fascism:  It's a far-right authoritarian, ultranationalist political ideology and movement characterized by a dictatorial leader, centralized autocracy, militarism, forcible suppression of opposition, belief in a natural social hierarchy."

"Certainly, the former president is in the far-right area, he's certainly an authoritarian, admires people who are dictators--he has said that.  So he certainly falls into the general definition of fascist, for sure."

Much of the discussion among historians is about whether there really is a "general definition of fascist."  Some historians argue that since Benito Mussolini originated the term, it should apply only to the specific historical movement of Mussolini's Italian fascism.  In 1919, Mussolini coined the Italian fascismo from fascio--a bundle or sheaf--recalling the Latin fasces:  an axe encased in a bundle of rods carried in public processions to symbolize the authority and unity of the Roman state.

This explains why the Oxford English Dictionary identifies the primary definition of "fascism" as "a nationalist political movement that controlled the government of Italy from 1922 to 1943 under the leadership of Benito Mussolini."

But then the OED also provides a generic definition of "fascism": "an authoritarian and nationalistic system of government and social organization which emerged after the end of the First World War in 1918, and became a prominent force in European politics during the 1920s and 1930s, most notably in Italy and Germany; (later also) an extreme right-wing political ideology based on the principles underlying this system."

As Paxton indicates, there are two reasons for why it's hard to reach agreement on these or any other definitions of fascism.  First, it is hard to define fascism as an ideology because the fascists did not care very much about ideas or doctrines.  They were devoted more to action than thought--they were driven more by feelings than by reason.  That explains why there is no authoritative statement of their ideas comparable to say Marx's Communist Manifesto as a statement of communist doctrines.  Mussolini and Hitler did issue some programmatic statements of fascist ideas.  But then their actions often contradicted what they had promised to do, and they never felt compelled to justify their actions as consistent with their ideas.  By contrast, Marxist leaders like Lenin and Stalin had to make elaborate arguments for why their actions were in conformity with the texts of Marx and Engels.

The second reason for why it's so hard to define fascism is that fascism never had a fixed or static identity because it changed as it passed through five stages: (1) the initial creation of a fascist movement, (2) the rooting of the movement as a party in a political system, (3) the acquisition of ruling power by the fascist leader and his party, (4) the exercise of that ruling power, and (5) the long term development of fascist power towards radicalization or dissolution.  Fascism looks different at each of these stages.  And while every fascist movement reaches Stage One, only a few reach Stage Two.  And very few--maybe only in Fascist Italy and Nazi Germany--reach Stage Three by actually gaining ruling power.  (Most of what have been commonly assumed to be examples of fascists taking power--like Franco in Spain or Salazar in Portugal--are really examples of traditional authoritarianism rather than pure fascism.)

Paxton has explained this fascist history of five stages in an article--"The Five Stages of Fascism" (1998)--and he has elaborated this history and analysis in a book--The Anatomy of Fascism (2004).

Despite his reluctance to reduce fascism to a single definition, Paxton does think that from this history of fascist actions in five stages, one can deduce the ideas implicit in those actions, which he summarizes in one long "functional definition of fascism":

"Fascism may be defined as a form of political behavior marked by obsessive preoccupation with community decline, humiliation, or victimhood and by compensatory cults of unity, energy, and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion" (1998: 21; 2004: 218).

He also states this as nine "mobilizing passions" that "belong more to the realm of visceral feelings than to the realm of reasoned propositions":

(1) "a sense of overwhelming crisis beyond the reach of any traditional solutions;"

(2) "the primacy of the group, toward which one has duties superior to every right, whether individual or universal, and the subordination of the individual to it;"

(3) "the belief that one's group is a victim, a sentiment that justifies any action, without legal or moral limits, against its enemies, both internal and external;"

(4) "dread of the group's decline under the corrosive effects of individualistic liberalism, class conflict, and alien influences;"

(5) "the need for closer integration of a purer community, by consent if possible, or by exclusionary violence if necessary;"

(6) "the need for authority by natural chiefs (always male), culminating in a national chieftain who alone is capable of incarnating the group's historical destiny;"

(7) "the superiority of the leader's instincts over abstract and universal reason;"

(8) "the beauty of violence and the efficacy of will, when they are devoted to the group's success;"

(9) "the right of the chosen people to dominate others without restraint from any kind of human or divine law, right being decided by the sole criterion of the group's prowess within a Darwinian struggle."

Do Trump and his MAGA party manifest most of these fascist passions?  You can answer this for yourself by watching the video of the recent Trump rally at Madison Square Garden and checking off the items on this list.

Okay, so you're not going to watch all six and a half hours of this!  But you can skip around it and see if it shows the "mobilizing passions" of fascism.

Now there are a few items in Paxton's definition and list of passions that don't show up here.  For example, Trump and his people don't express any interest in "external expansion"--they're not proposing to invade other countries.

We also might question whether there's any "collaboration with traditional elites" here, since the speakers repeatedly attack the "elites" in the Democratic Party.  But there is certainly a collaboration with some economic elites (such as Elon Musk) and some of the conservative elites in the Republican Party.

On the other hand, there are some distinctive traits of American Fascism here that are not prominent in Paxton's sketch of fascism.  While fascists like Mussolini and Hitler have been secular or perhaps pagan, American Fascists are often Christian Nationalists defending American Christians as the Chosen People of God against their godless enemies.  So, you'll notice that the Madison Square Garden rally begins with a prayer read by Tiffany Justice, one of the founders of "Moms for Liberty," who prays for God to intervene in support of Trump's election, and she thanks God for His miracle in saving Trump from being assassinated.  Later in the rally, David Rem holds up a cross at the podium and declares that Kamala Harris is the "Devil" and "the Antichrist."  Thus, we have the image of Trump as God's Chosen One fighting for America against the forces of demonic evil led by the Antichrist in the Last Battle as described in the book of Revelation.

Previously, I have written about the Christian Evangelicals who identify Trump as being the Messiah like Cyrus in the Old Testament.

NEITHER BY VOTE NOR BY FORCE

So, how do fascists come into ruling power (Stage Three)?  And does the history of fascists taking power help us to predict whether Trump's fascism could come into power in America?

It has been commonly assumed that fascists have come to power by force alone--through a coup d'etat.  Or, occasionally, you'll hear people say that fascists like Mussolini and Hitler took power through majority vote at the ballot box.  As Paxton and other historians have shown, both claims are false.

"Both Mussolini and Hitler were invited to take office as head of government by a head of state in the legitimate exercise of his official functions, on the advice of civilian and military counselors.  Both thus became heads of government in what appeared, at least on the surface, to be legitimate exercises of constitutional authority by King Victor Emmanuel III and President Hindenburg.  Both these appointments were made, it must be added at once, under conditions of extreme crisis, which the fascists had abetted."  We should see then that "no insurrectionary coup against an established state has ever so far brought fascists to power" (Paxton 1998: 17; 2004: 96-97).

The story that Mussolini's Fascists seized power over Italy through their "March on Rome" is fascist propaganda.  It is true that on October 28, 1922, about nine thousand Blackshirts marched to the gates of Rome.  But they were "poorly armed, wearing makeshift uniforms, short of food and water, and milling about in a discouraging rain" (Paxton 2004: 89).  Mussolini arrived in Rome from Milan on the morning of October 30, and he met with the King.  Although the King had plenty of soldiers who could have dispersed the Blackshirts, he foresaw that this would be bloody.  He decided, instead, to appoint Mussolini as Prime Minister.  Mussolini was bluffing, and his bluff worked.

The next day--October 31--with Mussolini already in office, ten thousand Blackshirts marched in a parade through Rome.  That evening, Mussolini had all of his Blackshirts sent out of town in fifty special trains.  The parade had established the myth that his Blackshirts had taken power by their own will and force.  October 28 became a national holiday and the first day of the Fascist New Year.

A year later, Hitler showed that he had been taken in by Mussolini's propaganda about the "March on Rome."  He attempted his own "march" on November 8, 1923.  During a nationalist rally in a Munich beer hall, he tried to kidnap the leaders of the Bavarian government and force them to launch a coup d'etat against the federal government in Berlin.  This "Beer Hall Putsch" was easily put down by police who fired on the Nazi marchers.  Hitler was arrested and imprisoned.  He learned the lesson that fascist political power could not be taken by force alone as long as the police and soldiers remained loyal to the government.

Hitler also learned that while he would have to work within the parliamentary party system, he could not come to power by winning a majority vote for his party.  The Nazis became the largest party in the German Reichstag in the parliamentary elections of July 31, 1932, when they won 37.2 percent of the vote.  But this dropped to 33.1 percent in the election of November 6, 1932.  Even when Hitler had become chancellor, and he could use his Storm Troopers to intimidate voters, the Nazi Party won only 43.9 percent of the vote in the elections of March 6, 1932.  By comparison, the Italian Fascist Party won 35 out of 535 seats in the parliamentary election of May 15, 1921.

Just as Mussolini had become the Italian Prime Minister by the appointment of the King, Hitler became the German Chancellor by the appointment of President Paul Hindenburg.  In both cases, conservative elites decided that appointing fascist leaders as the heads of government was the only way to form parliamentary majorities capable of vigorous governing without having to form coalitions with radical socialist and communist parties.

These conservatives saw this as the only way to resolve the unprecedented crises that they faced.  The first crisis was the social and political crisis created in the wake of World War One, which included the threat of a communist revolution in Western Europe sparked by the Russian Revolution.  The second crisis was the Great Global Depression that began in 1929.  By 1933, when Hitler became Chancellor, over 30% of the German workforce was unemployed.  Part of this was the "crisis of liberalism" insofar as it seemed that liberal democracy could not solve these problems.

On February 28, 1933, a fire set by a Dutch communist youth gutted the Reichstag building in Berlin.  This was generally believed to be the beginning of a communist coup.  This provoked President Hindenburg into using his emergency powers under Article 48 of the Weimar Constitution, and he issued a decree suspending the legal protection of personal liberties.  This allowed Hitler's Brownshirts to use violence against Jews and others suspected of left-wing activities.  Then, on March 24 of 1933, parliament passed an Enabling Act that delegated its legislative powers to the executive.  This allowed Hitler to rule by his own personal authority from 1933 to the end of the war.  He was free to use violence against the "enemies of the people."  Here we see the fatal flaw in the Weimar Constitution--its openness to unchecked executive prerogative powers.

So, what does this history suggest as to whether and how Trump's fascism could gain ruling power in America?  First, we should say that Trump has never won an election by majority vote, although he won in 2016 in the Electoral College.  Like Hitler, he seems to have about 35-40 percent of the voters as a solid base.  When he ran in 2016, he was not clearly identified as a fascist candidate.  But now, after the January 6th insurrection and his open threats to use military force against the "enemy within," his fascist propensities have become clear to many voters.  And that's why I am predicting that Harris will win this election.

But if he does win, perhaps only in the Electoral College, can't we predict that he will make himself a fascist dictator?  And even if he loses, can't we predict that Trump will say the election has been stolen again, as it was in 2020?  And won't he lead his MAGA movement into a violent insurrection to take power by force alone?  

Well, sure, we can imagine that he will try something like this.  But from what we have seen from his failure to overturn the election of 2020, we can predict, as I argued a few years ago, that Trump will not have the guts or the guns to launch a successful coup.  

In his last year in office, Trump's fascist advisors told him that he needed to declare martial law (under the Insurrection Act) and order the military to suppress the Black Lives Matter demonstrations and to overturn the election.  He did not act on their advice because he lacked the courage to try this, and because his generals had told him they would not obey his orders if they violated the Constitution.  There is no reason to believe that there will be any change in these circumstances after the election.

Here is where I disagree with Robert Kagan's argument that regardless of whether Trump wins or loses the election, his fascism will destroy liberal democracy in America.  As I explained in my response to Kagan, the "crisis" that America faces today is nowhere near as deep as the crisis faced by Italy and Germany between the wars.  There is no threat of Communist Revolution in America despite Trump's silly assertion that the Democrats are Communists.  There is no Great Depression in America.  The American economy is more prosperous than it has ever been.

And, most importantly, there is no "crisis of liberalism" in America today comparable to what may have happened in Italy and Germany in the 1920s and 1930s.  While I agree with Kagan's claim that Trump's fascism is rooted in an American tradition of illiberalism, the American liberal tradition is stronger today than it has ever been.  One sign of that is that Trump and his supporters must insist that of course Trump is not a fascist, and of course the theme of his campaign is "freedom."

Moreover, even Kagan recognizes that illiberal fascists like Trump are desperate to win this election because they recognize that America is experiencing a "demographic shift" that favors liberalism over illiberalism:  as America becomes ever more multiracial, multiethnic, multicultural, and religiously pluralistic, it becomes impossible for any single ethnoreligious group to dominate American politics and culture, and the appeal of liberalism as the only means of holding such a pluralistic society together will grow ever stronger.

In this election and its aftermath, we will see the confirmation of Francis Fukuyama's argument for the "end of history":  liberalism will prevail over fascism.

THE LIBERAL REFUTATION OF ILLIBERALISM: BY FORCE OF IDEAS AND ARMS

Remember the ninth "mobilizing passion" of fascism:  "the right of the chosen people to dominate others without restraint from any kind of human or divine law, right being decided by the sole criterion of the group's prowess within a Darwinian struggle."

Lockean Liberals can accept that challenge and agree that liberalism must prevail over illiberalism through Darwinian cultural group selection in the war of ideas and arms.

Although ideas don't matter very much to fascism, particularly in its later stages when it takes political power, ideas do matter in the early creation of fascist movements.  I have written about the "Nazi philosophers"--from Plato and Fichte to Nietzsche and Heidegger.  And I have suggested the ways in which liberalism wins the intellectual war with illiberalism.  Indeed, the intellectual victory of liberalism has been so clear that even those who pose as antiliberals--Patrick Deneen, for example, turn out ultimately to be liberals.

Moreover, as Locke saw, there is a practical expression of the theoretical appeal of liberalism when people "vote with their feet" and choose to immigrate to those countries with more freedom, which is one form of cultural group selection.

But Locke also saw that the power of liberal ideas must ultimately be backed up with the power of liberal arms in the "Appeal to Heaven."  So, for example, the Declaration of Independence was not only a declaration of the "self-evident truths" of equal natural rights but also a declaration of war, in which the outcome would depend on the "popular Lockeanism" of the Americans fighting in the war.

Then, in 1861, the Confederate States of America declared themselves a nation conceived in the liberty of white men to enslave others and dedicated to the proposition that all men are not created equal; and they engaged in a great war testing whether that nation or any nation so conceived and so dedicated can long endure.  That nation did not endure because it was defeated by a Lockean liberal regime with a larger population of well-armed fighting men, including emancipated slaves, many of whom understood that they were fighting for the principles of the Declaration of Independence.  As the proslavery Southerner George Fitzhugh admitted, the Union defeat of the Confederacy was the victory of John Locke over Robert Filmer.

But that was not enough to ensure the "new birth of freedom."  The use of military force to suppress the fascist militias of the Klan in the Reconstruction Era and then in the Second Reconstruction (the Civil Rights Movement) to reform the Jim Crow South was required for overthrowing the illiberal tradition of the American South.  This included a Black tradition of armed self-defense and rebellion.  Ultimately, Lincoln's rhetoric of equal liberty defeated George Wallace's rhetoric of freedom as domination.

Similarly, in World War Two, we saw a test in war of the fascist "right of the chosen people to dominate others without restraint."  And with the defeat of Fascist Italy and Nazi Germany in war, we saw that there is a sense in which might does make right, when people in the state of nature exercise "the executive power of the law of nature" to resist and punish those who would dominate them.

REFERENCES

Kagan, Robert.  2024.  Rebellion: How Antiliberalism Is Tearing America Apart--Again.  New York: Knopf.

Paxton, Robert O.  1998.  "The Five Faces of Fascism."  The Journal of Modern History 70 (March): 1-23.

Paxton, Robert O.  2004.  The Anatomy of Fascism.  New York: Random House.

Paxton, Robert O.  2021. "I've Hesitated to Call Donald Trump a Fascist.  Until Now."  Newsweek, January 11.

Schmidt, Michael S.  2024.  "As Election Nears, Kelly Warns Trump Would Rule Like a Dictator."  The New York Times, October 22.

Zerofsky, Elisabeth. 2024. "Is It Fascism?  A Leading Historian Changes His MInd."  The New York Times, October 23.

Black Armed Rebellion Against the Fugitive Slave Laws

An 1872 Depiction of the Shooting of Edward Gorsuch at the "Christiana (Pennsylvania) Riot," in 1851

The Fugitive Slave Law of 1850 was passed by the United States Congress on September 18, 1850, as part of a package of laws called the Compromise of 1850, which was an attempt to mediate the conflict between proslavery interests in the South and abolitionists and free-soilers in the North so as preserve the Union.  Over the next ten years, the violent resistance to the law in the North and the anger of Southerners who complained that the law was not fully enforced contributed to the polarization over slavery that provoked the Civil War.  The violent rebellion against the law--by both black and white people--was justified as both a natural right and a constitutional right to use armed violence in defense of life and liberty.  Proslavery Southerners objected that this violated their constitutional right to have their runaway slaves returned to them.

Throughout the history of slavery over thousands of years, slaves have run away from their enslavement; and they have used violence to defend themselves against slave catchers.  But this had never led to the abolition of slavery as a system, because while runaway slaves don't want to be enslaved themselves, they do not necessarily object to the enslavement of others.

But in the black violent resistance to the fugitive slave laws, many of the runaway slaves--people like Frederick Douglass and Harriet Tubman--helped other slaves to escape through the Underground Railroad.  So, these slaves were seeking freedom not just for themselves but for all slaves; and they were justifying this by appealing to the abolitionist principle that all human beings are naturally entitled to equal liberty.

                                                    Harriet Tubman Always Carried a Gun

TWO FUGITIVE SLAVE LAWS

The abolitionists were challenging the constitutional authority for the fugitive slave laws supposedly rooted in a clause in Article IV, Section 2, Clause 3, of the Constitution:

"No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due."

The Fugitive Slave Act of 1793 was the first legislative enforcement of this clause.  Fugitive slaves in free states could be seized or arrested by the slave owner or his agent and taken before a federal judge or a local magistrate.  The slave catcher would then have to prove to the judge or magistrate through oral testimony or an affidavit that the person seized or arrested was indeed a slave who owed service or labor to the person claiming him or her.  It would then be the duty of the judge or magistrate to issue a certificate that would warrant the return of the slave to the state or territory from which the slave had escaped.  Anyone who obstructed or hindered the claimant in taking the slave could be fined five hundred dollars.

To prevent or restrict the enforcement of this law, many of the state governments in the North passed "personal liberty laws" to impede the capture and return of fugitive slaves.  Some of the most common of these laws allowed jury trials for escaped slaves and prohibited state authorities from cooperating with the slave catchers.  In jury trials, juries often refused to convict fugitive slaves and thus nullified the fugitive slave law (Morris 2010).

Armed black violence also obstructed the enforcement of the 1793 fugitive slave law.  Here are a few examples.  In 1806, Ned Page and his wife had escaped from slavery in Kentucky; and they were traveling near Dayton, Ohio.  They were in a tavern.  Two armed men entered, and they were ready to take the Pages back south as slaves.  Ned pulled a pistol and threatened to kill them.  Some friends came to his support.  The two slave catchers were arrested and charged with breach of the peace.

In 1810, in Jefferson, Ohio, slave catchers captured a family of fugitive slaves, tied them up, and started marching them south.  They were stopped by a group of twenty black men armed with guns and other weapons.  Under the threat of a fight, the Southerners agreed to present their claim to a local magistrate, who ruled that the black fugitives should be freed.  The slave hunters were charged with assault.  After posting bail, they rode away.

In 1820, John Reid was a fugitive slave living in Kennett Township, Pennsylvania.  Armed slave catchers broke through the door of his cabin.  Reid grabbed his gun.  He shot dead Samuel Griffith, who had been his owner.  His single-shot gun was now spent.  So, he used a club to kill Peter Shipley, who had been his overseer.  Although Reid was charged with murder, the jury acquitted him on the murder of Griffith and convicted him of a lesser charge in the killing of Shipley (Johnson 2014: 39-40; Harrold 2010: 25-27, 32, 95).

There were hundreds of similar cases in which armed fugitive slaves successfully resisted slave catchers with the help of sympathetic local magistrates and juries.  That is why proslavery Southerners demanded a new more effective fugitive slave law in 1850.

The Fugitive Slave Law of 1850 did indeed favor the slave catchers.  Enslavers needed only to provide an affidavit stating their claim on a fugitive slave to a federal marshal to capture the fugitive.  Federal circuit courts were to appoint commissioners who would hold hearings to determine whether someone was a fugitive slave based only on the sworn testimony of a slave catcher.  The person charged as a fugitive slave had no right to testify in his defense, no right to trial by jury, and no right to a writ of habeas corpus.  A commissioner was paid ten dollars if he found that an individual was a fugitive slave, but only five dollars if he found that this was a false charge.  Anyone helping fugitive slaves to escape could be charged with a crime and subject to a fine of up to one thousand dollars and imprisonment up to six months.

Shortly after the passage of this new fugitive slave law, libertarian abolitionist Lysander Spooner published A Defence for Fugitive Slaves.  He argued that since slavery was both unjust and unconstitutional, people held as slaves had the right to run away, and other people had the right and the duty to help them.  Therefore, the fugitive slave laws of 1793 and 1850 were unjust and unconstitutional.

SPOONER'S ATTACK ON THE FUGITIVE SLAVE LAWS

For Spooner, the unconstitutionality of slavery and fugitive slave laws is indicated by the simple fact that the words "slave" and "slavery" never appear in the Constitution.  What has been called the "Fugitive Slave Clause" of the Constitution says nothing about "fugitive slaves."  Rather, it says, "No Person held to Service or Labour in one State, under the Laws thereof, escaping into another" shall be discharged from their service or labor.  A "person held to service or labour" is standard legal language for a person who has a contractual obligation as a servant to someone, and such a servant is not a slave.  "Now a slave is not 'held' by any legal contract, obligation, duty, or authority, which the laws will enforce," Spooner observed.  "He is 'held' only by brute force" (46).

Spooner noted that at the Constitutional Convention, Pierce Butler and Charles Pinkney (delegates from South Carolina) proposed clear language "to require fugitive slaves and servants to be delivered up like criminals."  But the delegates never agreed to this language that would have expressly identified "fugitive slaves" along with "servants" (Farrand 2:443). 

Spooner pointed out that, at the Virginia Ratification Convention in 1788, James Madison quoted the language in the final text of the Constitution about "no person held to service, or labour"; and he asserted: "This clause was expressly inserted to enable owners of slaves to reclaim them" (Bailyn 1993, 2:707).  But actually this clause did not "expressly" mention "slaves," as had been proposed by Butler and Pinkney.

Even if Madison was expressing the original intent of many people at the Constitutional Convention and the Ratifying Conventions, he was not expressing what Spooner identified as the original meaning of the text of the Constitution.  Spooner thus became the earliest proponent of the constitutional jurisprudence of textualist originalism.

Spooner also insists that this original meaning of the constitutional text must be known to the people who ordained and established the Constitution: "We the People."  Consequently, the common assertion that the judiciary has the right to decide all constitutional questions authoritatively for the people is mistaken.  Nowhere in the Constitution is it stated that the judiciary is the final authoritative interpreter of the Constitution.  The people must decide for themselves whether a judicial decision has correctly interpreted the original meaning of the Constitution.  

"In the very nature of things, nothing but the law can be binding upon anyone," Spooner explained.  "An unconstitutional judicial decision is no more binding, than an unconstitutional legislative enactment--and a man has the same right to resist, by force, one as the other, and to be tried for such resistance by a jury, who judge of the law for themselves."  Since juries have the right to judge both the constitutionality of the law and the justice of the law, juries can nullify the fugitive slave laws if they judge them to be unconstitutional and unjust.

That Spooner was right about the unconstitutionality of the fugitive slave laws was confirmed by the framing of the Constitution of the Confederate States of America in 1861.  As I have indicated in a previous post, the Confederate Constitution is largely a word-for-word copy of the U.S. Constitution (as it existed in 1861), except that while the U.S. Constitution never uses the words "slave" or "slavery," the Confederate Constitution uses those words nine times.  This is the case for the clause about returning fugitives.  While the U.S. Constitution says, "No Person held to Service or Labour . . .", the Confederate Constitution says, "No slave or other person held to service or labor."  Thus, the text of the Confederate Constitution has an expressly stated fugitive slave clause, while the text of the U. S. Constitution does not.

But even if, for the sake of argument, we assumed that the U. S. Constitution did have a fugitive slave clause, we could still argue, as Spooner did, that the fugitive slave laws were unconstitutional.  He gave various reasons for this.  These laws deny the slave's rights to trial by jury and to the writ of habeas corpus, although these rights are guaranteed by the Constitution.  The Fugitive Slave Law of 1850 authorizes cases to be decided wholly by ex parte testimony, because it requires a judge or commissioner to decide a dispute through testimony by one side only--the slave catcher--while prohibiting the alleged fugitive from testifying in his own defense or confronting his accusers.  The law declares: "In no trial or hearing, under this act, shall the testimony of such alleged fugitive be admitted."  This is unconstitutional because excluding testimony is an exercise of the judicial power vested by the Constitution in the courts.  This legislation is thus a usurpation by Congress of the judicial power.

Having shown that the fugitive slave laws were unconstitutional, Spooner argued, he could then conclude that the people have a constitutional and natural right to resist those laws--even violent resistance.  Without any constitutional authority, the officers appointed to execute these laws are "mere ruffians and kidnappers," who may be lawfully resisted like any other ruffians and kidnappers.  Everyone is legally and morally obligated to rescue anyone assaulted or restrained by them.

    An April 24, 1851, Poster Warning about Boston Policemen Acting as Kidnappers of Fugitive Slaves

Spooner saw a constitutional right to armed resistance to the fugitive slave laws stated in the Second Amendment: "The right of the people to keep and bear arms shall not be infringed."  When the government goes beyond, or contrary to, the textual meaning of the Constitution, and there is no peaceful remedy for this usurpation of power, then the people have the constitutional and natural right to resort to armed resistance as the only remedy.

Frederick Douglass expressed this thought in blunt terms:  "The true remedy for the Fugitive Slave Bill is a good revolver, a steady hand, and a determination to shoot down any man attempting to kidnap" (Frederick Douglass's Paper, June 9, 1954).  One of the most famous examples of that harsh remedy occurred in a small town in Pennsylvania.

THE CHRISTIANA RIOT

As dawn broke on the morning of September 11, 1851, William Parker was in his farmhouse outside of Christiana, in Lancaster County, Pennsylvania, preparing for the arrival of Edward Gorsuch, a slaveholder from Maryland who was coming with a federal warrant to recover his four runaway slaves.  What happened on that morning would be reported in newspapers across the United States with big headlines such as "CIVIL WAR, FIRST BLOW STRUCK" (Slaughter 1991).

Parker had been born a black slave in Maryland.  When he was seventeen, he ran away to the free state of Pennsylvania and settled in Christiana, only twenty miles from the Maryland border.  In 1851, he was 29 years old.

Slave catchers often came to this part of Pennsylvania looking for fugitive slaves.  Sometimes, the slave catchers kidnapped free blacks that they could sell into slavery in the South.  For at least twenty years, there had been a mutual protection society of blacks in the area, who alerted their neighbors when slave catchers were around, and they would retrieve any blacks taken captive before they could be taken back across the state line to Maryland.  Parker joined this group, and he became an active conductor for the Underground Railroad.

When Gorsuch in Maryland discovered that four of his twelve slaves had run away, he found out that they had likely gone to Lancaster County.  On September 9th, he was in Philadelphia, where he obtained a federal warrant under the Fugitive Slave Act for the arrest of the four runaway slaves.  Henry Kline, a deputy Federal Marshall, was authorized to make the arrest.  In Philadelphia, there was a Special Secret Committee of people who were organized to watch the federal courthouse, looking for slave catchers getting federal warrants.  One member of the group followed Gorsuch and Kline, and he warned the black community around Christiana that they were coming.

Gorsuch's posse entering Christiana included Kline, Gorsuch's son Dickinson, two nephews of Gorsuch, and two other men.  This party of Gorsuch's men were led at night on September 11 by a hired white guide, who led them to Parker's house just before dawn and then left.  Parker was in the house with his wife, her sister, three other men, and two of Gorsuch's slaves.  Parker and his household moved to the second floor of the house with their guns so that they would be in the best position to defend themselves.

Gorsuch's party surrounded the house, and Kline shouted that he was a Federal Marshall with a warrant for seizing the slaves.  Parker and his household argued with Gorsuch and his men.  Parker's wife blew a horn that was a signal that they needed help from local blacks.

Someone fired shots, but no one was injured.  Some of those in the posse recommended that they retreat and then recruit a larger group of men.  But Gorsuch refused.  Parker asked for time so that he and his household could talk about whether to give up the runaway slaves.  Parker might have been delaying to allow time for reinforcements to arrive.  Over the next 30 minutes, several unarmed white neighbors arrived, along with 75 to 150 armed blacks.  Kline identified himself to the white men as a Federal Marshall, and he asked them to join in arresting the fugitive slaves.  One of the white men--Caster Hanway--said that they would not help in the arrest, and he told Kline and his men to leave to avoid bloodshed.  Kline warned that they were committing a federal crime by refusing to help with the arrest.

One of Gorsuch's slaves came out of the house.  When Gorsuch challenged him, he clubbed Gorsuch until he fell to the ground.  Gorsuch was then shot multiple times, and he died.  When Gorsuch's son jumped in to help, he too was shot multiple times, but he later recovered.  As soon as the violence started, Kline and others in the posse ran away.

Parker, Gorsuch's four fugitive slaves, and some other blacks fled north to Rochester, New York, to the home of Frederick Douglass.  Parker and Douglass had known one another when they were both slaves in Maryland.  Douglass arranged for the group to catch a ferry to Canada.  Parker gave Douglass a revolver that he said had been used to kill Gorsuch.  Douglass cherished it for the rest of his life as a trophy.

Some white slave owners had been killed prior to 1850 in attempts to enforce the Fugitive Slave Act of 1793.  But Gorsuch was the first white slave owner to be killed since the passage of the Fugitive Slave Act of 1850.  This created public pressure on the federal government to show that violent resistance to the new fugitive slave law would be severely punished.  President Millard Fillmore--who had been instrumental in passing the Compromise of 1850--called out the marines to search the area around Christiana.  41 men (36 blacks and 5 whites) were arrested and charged with treason.  Parker and the four fugitive slaves in Canada were charged in absentia.

Caster Hanway--one of the five white men charged--was the first to be indicted.  The trial in Philadelphia lasted from November 24 until December 11, 1851.  The lead judge in the case--Supreme Court Justice Robert Grier--instructed the jury that treason would have to be a conspiracy of a public nature to overthrow the government or hinder the execution of the law.  He suggested that the Christiana resisters were acting for purely personal motives.  "A number of fugitive slaves may infest a neighborhood, and may be encouraged by the neighbors in combining to resist the capture of any of their number; they may resist with force and arms. . . . Their insurrection is for a private object and connected with no public purpose."  Perhaps influenced by this instruction from the judge, the jury took on 15 minutes of deliberation to vote for acquittal.  However, the jury might also have been moved by Spooner's idea that juries can rightly nullify laws that they regard as unconstitutional or unjust.

After Hanway's acquittal, the federal prosecutors dropped the treason prosecutions.  They could have charged the remaining black defendants with riot and murder, but they worried that remanding them for trial on these state offenses would probably result in lenient treatment by county court and juries.  Ultimately, then, no one was convicted of a crime.

This case evoked some public sentiment in support of the armed resistance to what many regarded as an unconstitutional and unjust fugitive slave law.  But there was also popular scorn (in both North and South) for abolitionist violence that violated the constitutional right of slaveowners to have fugitive slave laws enforced.

This one dramatic example of armed black resistance to the Fugitive Slave Law of 1850 raises three kinds of questions.

The constitutional question is, Did the resisters have a constitutional right to use armed violence to resist the Fugitive Slave Law as being unconstitutional?

The moral question is, Did they have a natural right to resist that law with armed violence to defend their life and liberty?

The political question is, Was this a politically prudent way to advance popular support for the abolitionist cause?

It should also be noted that, at least by historian Thomas Slaughter's reckoning, the Fugitive Slave Law of 1850 as it was enforced really did favor the slaveowners.  During the first 15 months after the law was passed, 84 alleged fugitive slaves were sent back South by federal commissioners, and only 5 were set free.  Over 10 years, 332 blacks were sent back to slavery, and only 11 were released by federal commissioners.

REFERENCES

Bailyn, Bernard, ed.  1993.  The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification.  2 vols.  New York: Library of America.

Farrand, Max, ed.  1937.  The Records of the Federal Convention.  4 vols.  New Haven, CN:  Yale University Press.

Harrold, Stanley.  2010.  Border War: Fighting over Slavery before the Civil War.  Chapel Hill: University of North Carolina Press.

Johnson, Nicholas.  2014.  Negroes and the Gun: The Black Tradition of Arms.  Amherst, NY: Prometheus Books.

Morris, Thomas.  2010.  Free Men All: The Personal Liberty Laws of the North, 1780-1861.  Baltimore, MD: Johns Hopkins University Press.

Slaughter, Thomas.  1991.  Bloody Dawn: The Christiana Riot and Racial Violence in the Antebellum North.  New York: Oxford University Press.

Spooner, Lysander.  1850.  A Defence for Fugitive Slaves, against the Acts of Congress of February 12, 1793, and September 18, 1850.  Boston:  Bela Marsh.

The Black Tradition of Armed Self-Defense and Rebellion in America: The Answer to the Christian Uncle Tom Problem

Discovery of Nat Turner, an 1884 Wood Engraving Illustrating Benjamin Phillps's Capture of Nat Turner--Turner with a Sword, Phillps with a Rifle

First published in 1852, Harriet Beecher Stowe's Uncle Tom's Cabin sold millions of copies in the United States and around the world and became perhaps the single most influential expression of abolitionist rhetoric.  And yet, as I have indicated in previous posts, some black abolitionists criticized her for depicting Uncle Tom as a submissive Christian slave who followed the Bible's admonition "Slaves, obey your masters."  In the 1950s, black author James Baldwin renewed this criticism and made "Uncle Tom" a term of scorn for blacks who passively submitted to their own exploitation and thus confirmed the racist depiction of blacks as unmanly in their servility.

Perhaps in response to this kind of criticism, Stowe seemed to change her mind in 1856 with the publication of her second novel Dred, A Tale of the Great Dismal Swamp.  Her hero in this novel--Dred--is a leader of violent slave insurrections who sneers at the meek passivity of Christian slaves.  Speaking to a slave, he declares:

"When a man licks his master's foot, his wife scorns him--serves him right. Take it meekly my boy! 'Servants, obey your masters.' (Ephesians 6:5) Take your master's old coats--take your wife when he's done with her--and bless God that brought you under the light of the Gospel! Go! You are a slave! But, as for me, . . . I am a free man! Free by this," holding out his rifle. "Free by the Lord of hosts, that numbereth the stars, and calleth them forth by their names. Go home--that's all I say to you! You sleep in a curtained bed.--I sleep on the ground, in the swamps! You eat the fat of the land. I have what the ravens bring me! But no man whips me! --no man touches my wife--no man says to me, 'Why do ye so?' Go! you are a slave!--I am free!" (199-200)

To those of us who think of the history of the modern civil rights movement as dominated by the Christian nonviolence taught by Martin Luther King and others, it might seem strange to think of American blacks as made free by their rifles.  But, in fact, there is a long American black tradition of armed self-defense and rebellion from the seventeenth century to the present.  The best single history of that tradition is Nicholas Johnson's Negroes and the Gun: The Black Tradition of Arms (Prometheus Books, 2014).  

What I see in this history is the black assertion of the Lockean natural right to keep and bear arms in defense of one's life and liberty--a natural right that has been made a civil right in Anglo-American law such as the Second Amendment to the Constitution.  Whenever people find themselves in circumstances where they cannot rely on governmental authorities to protect their life and liberty, they are thrown into a state of nature with what Locke called "the executive power of the law of nature"--the power and the right to punish those who aggressively attack them.

Johnson shows that there have been four periods in American black armed violence.  In the first, from the earliest colonial settlements with slavery in the 17th century to the end of Reconstruction in 1877, blacks used armed violence both in personal self-defense and in rebellion against slavery.  In the second period, from the end of Reconstruction to the early 1960s, blacks employed armed violence for individual self-defense, but they usually avoided political violence.  Then, in the early 1960s, a few black radical leaders recommended political violence to achieve "black power," which provoked a backlash from both black and white leaders who said that while violence in self-defense could be justified, political violence was foolish and unjustified.  Finally, beginning in the late 1970s, the high rate of black-on-black gun violence led many black leaders to recommend a complete ban on the private ownership of all guns as the only way to reduce gun crime in black neighborhoods.

ARMED VIOLENCE FOR SELF-DEFENSE AND REBELLION, 1712-1877

In colonial America, there is evidence that slaves often fought back in self-defense against their masters.  For example, some studies of the legal records shows that violence against masters was the most common form of slave crime (Johnson 2014: 32, 36).

There is also plenty of evidence of armed violence in slave rebellions.  Historian Herbert Aptheker identified over 250 slave uprisings involving 10 or more slaves (Aptheker 1943).  Consider three examples.

In the early 1700s, about 20 percent of the population of New York City were enslaved black people.  On the early morning of April 6, 1712, a group of over 20 black slaves set fire to a building, which served to distract the white colonists who tried to put out the fire.  The slaves were armed with guns, swords, and hatchets; and they killed 8 whites and wounded 7.  The slaves were captured almost immediately.  As many as 70 blacks were arrested.  21 were convicted and executed.  After the revolt, the city and colony passed restrictive laws for black slaves, including prohibiting blacks from carrying firearms (Hughes 2021).

On September 9, 1739, a Sunday, 20 slaves led by Jemmy Cato assembled near the Stono River southwest of Charlestown, South Carolina, with the hope of fleeing to Spanish Florida, where they would become free under a 1733 proclamation by the Spanish King.  Cato could read and write, which made it easier for him to learn about the King's proclamation. They did this on a Sunday because most of the planter families would be in church, and because by tradition slaves were left unsupervised on Sundays to work for themselves.  The slaves first attacked a warehouse belonging to a Mr. Hutchenson.  They killed some white people there, and they seized many small arms and ammunition stored there.  They plundered and burned other houses and killed other white families.  They began marching south towards Florida, carrying a banner that said "Liberty."  Other slaves joined while they marched until there were as many 100 in the march.  Colonel Bull, Lieutenant Governor of South Carolina, happened to be riding in the area.  Bull rode off to spread the alarm and to raise a militia to pursue the slaves.  When the militia attacked, many of the slaves ran away, but as many as 40 fought to the death.  It was all over by the end of the day.  Overall, about 40 blacks and 20 whites were killed (Hoffer 2011).  

The story of this rebellion shocked white people in South Carolina and elsewhere.  It was especially disturbing in South Carolina, where slaves outnumbered whites, and thus whites feared a general slave uprising.  New laws were passed restricting slavery such as prohibiting slaves from being taught to read and write and from carrying firearms.

On August 21, 1831, Nat Turner led a slave rebellion in Southhampton, County, Virginia.  Turner was a deeply religious preacher who believed that God had told him to lead a slave insurrection.  He planned the rebellion carefully over many months telling only a few trusted slaves.  Starting with a few, the rebellion expanded to over 70 slaves and freedmen.  They were armed with knives, hatchets, and clubs.  They had not been able to collect any firearms.  Turner ordered his men to "kill all the white people."  They moved across the countryside freeing slaves and killing whites.  

The rebels killed as many as 65 white people before the rebellion was suppressed by the state militia on the morning of August 23.  The militia greatly outnumbered the rebels.  The militia was also well armed with guns and even artillery.  Turner, however, escaped; and he survived in hiding for over two months.  On October 30, Turner was discovered by a farmer--Benjamin Phipps--who turned him over to the authorities.  Turner was tried and convicted.  He was hanged on November 11, and his body was mutilated.  During this time false rumors about a spreading slave rebellion led militias and mobs to kill over a hundred blacks who were falsely assumed to be rebels (Oates 1975).

These three slave rebellions illustrate a general pattern for such rebellions.  The number of rebels is small--usually no more than a few dozen, sometimes up to a hundred.  Remarkably, even in places like South Carolina, where the slave population was the majority, the rebels could not spark a general insurrection, which could have overwhelmed the white population.  The rebellion is quickly suppressed within one or two days.  The rebels fail because they are outnumbered and outgunned by their white opponents.  Notice in the picture of Nat Turner being captured by the farmer that Turner has only a sword, while the farmer has a rifle.

And most significantly, none of these rebellions led to the abolition of slavery.  Turner's rebellion in 1831 did provoke the Virginia Legislature in 1832 into a debate over the possibility of abolishing slavery.  Thomas Jefferson's grandson, Thomas Jefferson Randolph, warned that if slavery were not soon abolished peacefully by the legislators, it would someday be abolished violently by the rebellion of slaves.  He proposed a version of his grandfather's plan for the gradual emancipation of slaves and then sending the freemen to colonies in Africa.  Although the proposal was defeated, it had strong support.  The principal objections had to do with the impracticability of the plan.  Notably, no one in this long debate spoke of slavery as a good that should be preserved forever (Root 2008).  But within a few years, some Southern thinkers began for the first time to defend slavery as naturally good for slaves because of their biological inferiority to white people and the need of black people for paternal care by whites.  By 1837, John C. Calhoun defended slavery on the floor of the United States Senate as a "positive good" (Calhoun 1992: 474).

Some historians have argued that black slave rebellions show that blacks were not dependent on white abolitionists for their emancipation, because the slaves emancipated themselves by their aggressive resistance to slavery.  But, as I have noted in a previous post, historians like Joao Pedro Marques have pointed out that while slaves for thousands of years resisted their enslavement, slaves never sought the abolition of the system of slavery.  In fact, many emancipated slaves have become slaveholders themselves.  The abolition of slavery in the 19th century depended on the Enlightenment idea of the Declaration of Independence that all men are created equal and endowed with equal liberty, and therefore slavery is inherently unjust.  Slavery was abolished not by slave rebellions, but by the ideology of abolitionism.

Through most of our evolutionary history as hunter-gatherers, in which our human nature was shaped, slavery did not exist, and human adults lived as free and equal individuals.  But then with the establishment of agrarian societies and formal bureaucratic governments, slavery arose and became so deeply established that a "slaveless world" seemed so unimaginable that even while slaves sought every opportunity to liberate themselves, they could not conceive of a world without some being enslaved to others.  It was not until the seventeenth and eighteenth centuries that the Liberal Enlightenment--from John Locke to Adam Smith--introduced the rhetoric of bourgeois equality and liberty that was expressed in the Declaration of Independence, which gradually, in the nineteenth century, led to the abolition of slavery, which was a return to the equality and liberty of the evolutionary state of nature. 

Marques is correct in saying that slaves did not abolish slavery through their slave rebellions alone.  But slave rebellions contributed to the abolition of slavery once those armed slave rebellions became part of the moral and political movement to secure the natural rights to equal liberty promised by the Declaration of Independence.  One can see that in the resistance to the Fugitive Slave Act of 1850, in the Civil War, and in Reconstruction.  In each case, black armed rebellion was in the service of the principle of equal liberty as demanding the abolition of slavery.

To be continued . . .

The American Black Tradition of Armed Self-Defense as a Natural Right: A Response to Jefferson Cowie

The 13th chapter of Jefferson Cowie's Freedom's Dominion has a provocative title: "Lynching as an Act of Freedom."  Cowie explains: "A person did not have to see a dead and mutilated body to know that white people relished a uniquely sinister form of liberty: the freedom to take a life with impunity" (233).  White people lynching black people expressed the freedom of white people to dominate others.

Cowie observes: "The only cure, short of changing the hearts of white people or the armed resistance of Black people, was the power of the federal government" (241).  But while the federal government had restrained the freedom of the dominant white class to inflict violence on the blacks during Reconstruction, once Reconstruction was over, the federal government never made lynching illegal until the "Second Reconstruction," in the 1960s, when major civil rights legislation was passed.

But notice how Cowie quickly passes over "the armed resistance of Black people" as a possible restraint on lynching, which suggests that black people never saw this as a serious option.  Cowie thus ignores the black tradition of armed self-defense.  For example, while Cowie makes one brief reference to Ida B. Wells, who was a famous black journalist known for her national campaign to expose the brutal injustices of lynching, he says nothing about her argument that armed self-defense was the best way to prevent lynchings.  In one case, after telling the stories of blacks using firearms to stop lynchings in Jacksonville, Florida, and Paducah, Kentucky, she declared:  "The lesson this teaches us and which every Afro-American should ponder well, is that the Winchester rifle should have a place of honor in every black home.  The more the Afro-American yields and cringes and begs, the more he is insulted, outraged, and lynched" (Johnson 2014: 109-110).  We should remember that the Winchester was the best lever-action repeating rifle of that time.  It could be considered the assault rifle of its day.  One full fifteen-shot magazine could be fired in 11 seconds. 

The white fear of armed blacks was manifested in the "Black Codes" enacted in the Southern States after the Civil War, which prohibited blacks from having guns.  The law in Alabama, for example, prohibited "any freedman, mulatto or free person of color in this state, to own fire-arms, or carry about this person a pistol or other deadly weapon" (Johnson 2014: 79).  Cowie is silent about this.

Similarly, although Cowie has an entire chapter on the "convict lease system" as a disguised form of black enslavement, he is silent about the fact that one of the most common charges against these black convicts was the crime of carrying a concealed weapon (191-209).  Thus, Cowie does not allow his readers to see this as evidence for a widespread culture of black gun ownership that threatened white dominance.

Cowie also gives his readers a brief account of the race riots after World War One that is silent about how blacks fought back with guns (242-43).  One example is the Tulsa riot of 1921, in which as many as 100 people were killed, and over one thousand black homes were destroyed.  John Hope Franklin, who became a prominent black historian, moved to Tulsa in 1925 at age ten.  Franklin reported that "many more whites were killed during the riot than many whites were willing to admit," because they didn't want to admit that armed blacks had fought back heroically.  Franklin observed:

"The self-confidence of Tulsa's Negroes soared, their businesses prospered, their institutions flourished, and they simply had no fear of whites.  After 1921, an altercation in Tusa between a white person and a black person was not a racial incident, even if there was a loss of life.  It was just an incident.  Such an attitude had a great deal to do with eradicating the fear that a Negro boy growing up in Tulsa might have felt in the years following the riot" (Johnson 2014: 189).

Cowie says nothing about this.

He is also silent about black armed self-defense in Alabama during the modern civil rights movement.  For instance, he writes about Rosa Parks and the Montgomery boycott of the bus system and about Autherine Lucy's attempt to enroll at the University of Alabama.  But he says nothing about Rosa Parks' account of how important armed defense was for the black community, and he says nothing about how a group of armed black men protected Autherine Lucy from a violent mob (Johnson 2014:220-222).

Similarly, Cowie says nothing about Condoleezza Rice's testimony about the importance of black armed self-defense for her family when she was growing up in Birmingham, Alabama.  She has said: "Because of this experience, I'm a fierce defender of the Second Amendment and the right to bear arms.  Had my father and his neighbors registered their weapons, Bull Connor surely would have confiscated them or even worse" (Johnson 2014: 223).  Cowie does not even mention the Second Amendment.

Cowie does not recognize armed self-defense as a natural or constitutional right, and that points to the fundamental flaw in his understanding of American freedom.  He agrees with Orlando Patterson that there are three kinds of freedom.  The first is the freedom to enjoy individual liberty as long as one does not infringe on the equal liberty of others.  The second is the civic freedom to participate in political life--freedom as democracy.  The third is the most ominous--the freedom of some people to dominate or even enslave others (6, 415-416). 

The problem is how to defend the first two forms of freedom against the third.  In America, the only way to do that, Cowie suggests, is to have the federal government protect individual freedom and democratic freedom at the local and state levels of government, which means overriding "states' rights."  The flaw in Cowie's reasoning here is that he does not allow people to defend their natural rights from attack when government fails to defend them.   

This governmental failure can either be malevolent or structural.  A malevolent governmental failure is when government becomes the tool of an oppressive ruling class in dominating an inferior class, as when local and state governments enforced white supremacy in the South.  

A structural governmental failure is when government either cannot or will not protect the equal liberty of all people.  When the federal government refused to protect equal liberty in the American South, that was a structural governmental failure.  But even when a government strives to protect the rights of all of its people, it often fails because the governmental agents of law enforcement are often not present when there is some imminent threat to someone's life or liberty.  In either case, where people cannot rely on government to protect them, they have a natural right to armed self-defense, which is also made a constitutional right by the Second Amendment.

Although this right to self-defense is important for all people, it has been especially important for black people in America because they have so often not been able to depend on government to defend them from violent attack.  Previously, I have written about how guns made the civil rights movement possible.  But in my next post, I will extend the story of the black tradition of armed self-defense that stretches over 200 years of American history, from the Founding to the present.  The most comprehensive account of that story is Nicholas Johnson's Negroes and the Gun (Prometheus Books, 2014).  It is remarkable that Cowie has no place for that story in his history.

The Crisis of the House Divided in 2024: Trump and the Antiliberal Tradition in America

Some Americans shocked by Donald Trump's MAGA movement have insisted: "This is not who we are."  President Biden has adopted that as the main theme of his campaign against Trump--that Trump and his MAGA movement are trying to overturn those moral and political principles that have always defined the American people. 

But now some historians are saying that Trump's political movement has deep roots in an American antiliberal tradition that has always been set against the liberal tradition that originated in the American Revolution and the liberal principles of the Declaration of Independence: since 1776 America has been split in two--a liberal America that embraces the ideal of equal liberty for all in the Declaration of Independence and an antiliberal America that rejects it.  

Two new books make this argument:  Robert Kagan's Rebellion: How Antiliberalism Is Tearing America Apart--Again and Steven Hahn's Illiberal America: A History.  In this post, I will respond to Kagan's book.

Kagan elaborates an argument that he first set forth in some articles in the Washington Post.  He makes two claims.  The first is that the American presidential election of 2024 will be like the election of 1860 in manifesting what Abraham Lincoln called the Crisis of the House Divided, which will provoke a rebellion against America's liberal democracy comparable to the South's rebellion in the Civil War.  The second claim is that this crisis in 2024 is only the most recent expression of a struggle between liberalism and antiliberalism that has been woven into American history ever since the American Revolution and most dramatically displayed in the American Civil War.

Kagan predicts that if Trump wins, he will become a dictator in punishing his enemies and exercising unlimited power in violation of the Constitution; and his supporters will allow him to do this.  If Trump loses, he will say the election was stolen, his supporters will deny the legitimacy of the federal government, and those state governments under Republican control will refuse to accept Biden's presidency, and perhaps secede from the Union and form a pro-Trump confederacy.  Either way, American liberal democracy will be dissolved.

This is possible, Kagan argues, only because the many Americans who support Trump reject the liberal principles of the American Revolution, and consequently they will justify Trump's illiberal behavior.  Trump's supporters show that they belong to an American tradition of illiberalism that stretches back to the origins of American politics.

Kagan sees the Declaration of Independence as the statement of the radical liberalism of the American Revolution--that all men are created equal and equally endowed with unalienable natural rights, such as life, liberty, and the pursuit of happiness, that governments are instituted by consent of the people to secure these rights, and that when any government fails to secure these rights, it is the right of the people to alter or abolish that government and to institute a new government that seems to them most likely to secure their safety and happiness.  

Throughout American history, the most fundamental political debates have been about how best to extend that equality of rights to all Americans.  Kagan agrees, therefore, with Lincoln's belief that this equality of rights in the Declaration was meant to be the "standard maxim for free society" that would be "constantly looked to--constantly labored for--and even though never perfectly attained, constantly approximated and therefore constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere" (Speech on the Dred Scott Decision, June 26, 1857).

But from the beginning in 1776, according to Kagan, these principles have been rejected by many Americans who have embraced a racial, religious, and ethnic antiliberalism, in which America is defined not by its commitment to human equality of rights but by its identity as a white Protestant Anglo-Saxon nation.  The American antiliberal groups have included the slaveholding South, the post-Reconstruction Jim Crow South, the Ku Klux Clan in the 1920s, the anti-immigration movement that led to the Immigration Act of 1924, the Dixiecrats of the 1940s and 1950s, the John Birch Society conservatives, the antiliberal conservatives associated with William Buckley, the supporters of George Wallace, the movement for Pat Buchanan, the New Right around Ronald Reagan, and now the antiliberal populists who have taken control of the Republican Party under the leadership of Trump.

Kagan believes that Trump's MAGA populism shows all the elements of American antiliberalism.  The racial element is white nationalism: all white groups have voted in greater numbers for Trump than for his opponents.  The religious element is Christian nationalism:  many of Trump's most fervent supporters want to restore America's identity as a Christian nation.  The ethnic element is Anglo-Saxon and European nationalism:  Trump's anti-immigration stance is predominantly opposition to immigrants of Hispanic, African, Middle-Eastern, and Asian ethnicities.  America is for Americans, and those Americans who do not support Trump's ethnic, religious, and racial vision of America are not true Americans.

Although I agree with much of what Kagan says, I disagree with him on three points.  First, he fails to make a good intellectual argument for the Lockean and Lincolnian interpretation of the Declaration of Independence.  Second, he fails to see that over the past 250 years of American history, the liberal tradition has ultimately prevailed over the antiliberal tradition--even among American conservatives. Finally, he fails to see that as a consequence of that triumph of the liberal tradition in America, Trump and his supporters have neither the guts nor the guns for fighting a civil war to overthrow that liberal tradition.

THE LOCKEAN AND LINCOLNIAN DECLARATION OF INDEPENDENCE

Kagan identifies the liberal principles of the Declaration of Independence (particularly in the first two paragraphs) as a concise and elegant statement of John Locke's political philosophy, and so the liberal tradition in America as based on the Declaration is a Lockean tradition of thought (13, 17, 30-31, 34, 41, 151).  Kagan says nothing, however, about Claire Rydell Arcenas's argument that the Declaration does not show Locke's influence at all.  He should have responded to her by showing the many clear echoes of Locke's language in the Declaration, as I did a few years ago.

Kagan should also have responded to Pauline Maier's claim that Lincoln's elevation of the Declaration to being America's statement of the "standard maxim for free society" was Lincoln's mythic invention.  Lincoln saw the highest moral standard for American politics stated in the first two paragraphs of the Declaration of Independence--particularly, the assertion that "all men are created equal." But Maier argued that from 1776 to 1790, almost no one thought that opening section of the Declaration was important.  It was only later, after the Jeffersonian Republicans had transformed the interpretation of the Declaration, that the "self-evident truths" of the second paragraph became the most important part of the Declaration.  

In my previous post, I answered Maier by arguing that the political philosophy of the Declaration was widely recognized beginning in 1776 as necessary for the moral justification of the Revolution, although George Mason's language in the Virginia Declaration of Rights was quoted more often than Jefferson's revision of that language, and as Maier admits, Jefferson's language had the "same content" as Mason's.  Then, beginning in the 1790s, the Jeffersonian Republicans began the tradition of quoting Jefferson's language as the most concise and eloquent statement of the founding principles of the American Revolution.  So, when Lincoln appealed to Jefferson's principles in the Declaration, he was not creating a myth but extending a tradition that had emerged early in the American founding period. 

But while Locke, Jefferson, and Lincoln all agreed that we can justify the human equality of rights as "inherent in the nature of being human"--as originally expressed in the state of nature--Kagan insists that they were wrong because liberalism is "a choice, and, at root, a faith" for which there is no rational proof or justification.  "Either one believes in its principles or one does not" (13-14).

This is not much of an argument for liberalism.  Indeed, it's not an argument at all, but rather a groundless "faith" or "choice."

Kagan simply assumes without proof that there is no empirical argument for natural rights as "inherent in the nature of being human."  He thus ignores the evolutionary historical evidence that Locke was right about the state of nature as the original condition of our human ancestors and that the American Revolutionaries were right about their being in a state of nature.  I have written about this in some previous posts.

Kagan asserts: "Since the dawn of humankind, people have been ruled by tyrannies of one form or another.  That is the norm" (10).  He offers no proof for this assertion.  And he does not respond to the evidence that I and others have presented to show that democracy is natural for human societies, because it arose in our earliest evolutionary history in Paleolithic hunter-gatherer bands, so that it is part of our genetically evolved human nature.

Contrary to Kagan, liberalism does not depend on a blind "faith."  Locke, Jefferson, and Lincoln were right in seeing that it can be supported with reasons and evidence that show how our natural rights arise from our evolved human nature.

THE TRIUMPH OF THE LIBERAL TRADITION IN AMERICA

Even if there is a good case to be made for liberalism, we have to wonder how successful it has been in persuading the American people.  If American history since 1776 has been a perpetual struggle between a liberal tradition and an antiliberal tradition, has one side emerged as stronger than the other?

Kagan's answer is unclear.  Sometimes he says that "large numbers of Americans" or "millions of Americans" are on the side of antiliberalism, and at other times he says that "half the country" is antiliberal.  But then he also says that at the founding "the great majority of Americans" were antiliberal.  And yet in the 1950s, antiliberalism "had fallen into minority status in both parties."  He also says that in recent history "the core antiliberal constituencies were declining in absolute numbers in the country at large, but as a percentage of Republicans, they were growing in both numbers and influence."  He quotes Glenn Ellmers (a scholar at the Claremont Institute) as saying that "most people living in the United States today--certainly more than half--are not Americans in any meaningful sense of the term," because only "the 75 million people who voted" for Trump in 2020 are true Americans.  (Previously, I have written about how Trump has split the Claremont Institute, with people like Ellmers taking the side of Trump against Jaffa's legacy of Lincolnian liberal conservatism.)  But then Kagan says that no more than "tens of millions of Americans will follow Trump wherever he leads."  (See pages 3, 5, 8, 77, 89, 94, 124, 135, 141, 161, 182, 196.)

In the final paragraph of his book, Kagan concludes that the future of American liberalism looks good--if it can survive the 2024 election:

"Meanwhile, the overall long-term prospects for American liberalism are actually bright, if only because the demographic shift is a reality that can't be blinked away.  White supremacy is another Lost Cause.  As America becomes increasingly multiracial, multiethnic, and multicultural, and as it becomes impossible for any single ethnoreligious group to dominate American politics and society, the appeal of liberalism as the only means of holding such a society together should grow.  Many white people may not change their attitudes toward other racial and ethnic groups--after all, they haven't changed in two hundred years--but their ability to fight to preserve their hierarchies will diminish because they will be too badly outnumbered.  That is why 2024 is the year when the antiliberals hope to overthrow the system.  It may be their last chance" (217-18).

I agree that the "demographic shift" towards a "multiracial, multiethnic, and multicultural" America favors liberalism.  But I also believe that there has been an intellectual shift in the moral and political culture of America that favors liberalism.  If we don't see that intellectual shift, that's because most of what Kagan identifies as antiliberal conservatism is only a pretense of antiliberalism that disguises an underlying liberal conservatism.

For example, Kagan speaks of Patrick Deneen as one of the leading antiliberals in America today (176, 185).  But as I have argued, if you study Deneen's writing carefully, you will see that he is actually a liberal!  As an illustration, you will notice that while Deneen praises John Winthrop's Massachusetts Bay Colony as the antiliberal founding of America--in contrast to the Lockean founding in 1776--Deneen refuses to defend the theocratic code of laws in Massachusetts--such as capital punishment for adulterers, homosexuals, witches, blasphemers, and those who refuse to worship God in the right way--because Deneen believes in the liberal principle of religious liberty, and so he's on the side of Roger Williams rather than Winthrop.

If you wanted to see a true model of antiliberalism, you would have to look beyond American history to Joseph de Maistre. In reaction against the French Revolution, Maistre initiated a Counter-Enlightenment tradition of thought based on a theocratic authoritarianism--the idea that all government comes from some unquestioned coercive authority that is divinely infallible and that all such authority is derived from the Pope as God's representative on Earth.  He proposed a restoration of the Bourbon monarchy to the throne of France, ruling under the supreme authority of the Pope in both temporal and spiritual matters.  Atheists, Jews, and heretical Christians (such as the Protestants) should be suppressed.  He claimed that the rationalist rejection of Catholic Christianity and theocratic monarchy was responsible for the disorder that followed the French Revolution of 1789.  Even the most extreme right-wing Catholic Integralists in France today who profess to be in de Maistre's tradition can't endorse his theocratic authoritarianism.

As compared with de Maistre, almost all American conservatives today--even those who pretend to be antiliberal or post-liberal--are really liberal conservatives.  You can see that in the debate that has recently emerged between the "National Conservatives" and the "Freedom Conservatives."  If you compare the "statement of principles" for National Conservatism with that for Freedom Conservatism, you can see that they agree in affirming the liberal principles of individual equality and liberty, and thus reject any ethnoreligious antiliberalism.  

For example, in the National Conservatism Statement, the section on "God and Public Religion" includes this: "Where a Christian majority exists, public life should be rooted in Christianity and its moral vision, which should be honored by the state and other institutions both public and private.  At the same time, Jews and other religious minorities are to be protected in the observance of their own traditions, in the free governance of their communal institutions, and in all matters pertaining to the rearing and education of their children.  Adult individuals should be protected from religious or ideological coercion in their private lives and in their homes."  

That's a long way from the theocratic coercion of Winthrop or de Maistre.

Here's the section on "Race" in the National Conservatism Statement:  "We believe that all men are created in the image of God and that public policy should reflect that fact.  No person's worth or loyalties can be judged by the shape of his features, the color of his skin, or the results of a lab test.  The history of racialist ideology and oppression and its ongoing consequences require us to emphasize this truth.  We condemn the use of state and private institutions to discriminate and divide us against one another on the basis of race.  The cultural sympathies encouraged by a decent nationalism offer a sound basis for conciliation and unity among diverse communities.  The nationalism we espouse respects, and indeed combines, the unique needs of particular minority communities and the common good of the nation as a whole."

This "decent nationalism" is a liberal multiracial and multiethnic nationalism.

What we see here is the ultimate triumph of the liberal tradition in American history.  The critical turning point in that history was the Civil War.  That war was a test of whether a nation dedicated to the proposition that all men are created equal could endure in a war with a nation dedicated to the proposition that all men are not created equal.  The victory of the Union over the Confederacy was, as George Fitzhugh sadly conceded, the victory of John Locke over Robert Filmer.

Moreover, there is a good argument for saying that the military superiority of the Union over the Confederacy really was in some ways a product of the Lockean liberal culture of the North.  Consider, for instance, how the greater population of the Northern states over the Southern states arose from differences in migration.  Before the Civil War, the migration of white Southerners to the North was three times greater than the migration from the North to the South.  At the same time, seven-eighths of the immigrants from overseas settled in the North.  (This later became important for the Union army: 24 percent of all Union soldiers were born abroad [McPherson 1997: ix].)  In the 1840s alone, the population growth in the North was 20 percent higher than in the South (Kagan, 70).  Proslavery Southern leaders saw this population growth in the North as the single greatest threat to the South, which is why they fought so hard to expand slavery into the western territories, and thus increase the number of slave states.

What we see here is what evolutionary scientists call cultural group selection through migration and assimilation, in which countries with cultural traditions of freedom have higher fitness than countries that are less free.  John Locke understood this, which is why he argued that free societies benefited from having open borders, so that they could attract migrants from less free societies.  The freer societies with a growing population of productive and inventive people become the more prosperous and powerful societies.  In this way, people "vote with their feet" in favor of freedom.

And of course, not only did many white Southerners migrate to the North, many slaves ran away to the free states, forcing Southern slaveholders to demand that people in the North capture these fugitive slaves and return them to slavery.  That's why the debate over the fugitive slave laws was so intense.

Because of its larger population, the Union had a larger pool of men from whom soldiers could be recruited.  Consequently, the Confederate soldiers were badly outnumbered by their opponents: of the 3 million Civil war soldiers, over 2.1 million (70 percent) were Union soldiers.

Now, of course, once Reconstruction was ended, the Jim Crow South did preserve some of the Southern antiliberal tradition for almost a hundred years.  But even that was eventually defeated by the liberal tradition of the Civil Rights Movement, signaled in 1965 by an American President from the South, speaking before a joint session of Congress, declaring: "We shall overcome."

TRUMP HAS NEITHER THE GUTS NOR THE GUNS FOR A CIVIL WAR

But then is it likely, as Kagan predicts, that after the election of 2024 Trump will lead his MAGA movement in a new rebellion against the American liberal tradition that will provoke another civil war?  After all, if the people do have the right to overthrow an unjust government, as the Declaration of Independence says, and if Trump and his supporters believe that the American liberal regime is unjustly oppressing them, then they should be willing and able to launch an antiliberal rebellion.

I don't think so.  As I said three years ago, the response of Trump and his supporters to his defeat in the 2020 election shows that they do not have the guts or the guns to rebel against the American liberal political order.

He did not have the guns because military leaders such as General Mark Milley (Chairman of the Joint Chiefs of Staff) made it clear that they would not allow the military to support a presidential dictatorship.  And he did not have the guts because he lacked the courage to assert his dictatorial will in violation of the Constitution.  He displayed his unmanly weakness on January 6 when he failed to lead the march on the Capitol as he had promised earlier in the day, and instead he watched the attack on TV at the White House, as if it were an entertaining TV drama.  Later, he meekly condemned the insurrectionary violence that he had inspired, and he told the insurrectionists to "go home with love and in peace." As Nicholas Fuentes of the white nationalist "America First" internet broadcasts said, Trump on that day proved to be "very weak and flaccid."

Kagan writes:

"What we are witnessing, however, is not a political battle but a rebellion.  The events of January 6, 2021, proved that Trump and his most die-hard supporters are prepared to defy constitutional and democratic norms, just as revolutionary movements have in the past.  Though it may have been shocking to see normal, decent Americans condoning a violent assault on the Capitol, that event demonstrated that Americans as a people are not as exceptional as their founding principles and institutions" (215).

But as shocking as the January 6th insurrection was, it could have been much more shocking.  Trump could have ordered the military to support the insurrectionists and to take control of the Capitol.  And he could have ordered his MAGA supporters to rise up and follow his leadership as the American Caesar.  He didn't do that because he didn't believe that Americans would support an antiliberal revolution to overthrow the American constitutional order.

By contrast, in 1861, Southern political leaders could count on there being a sufficiently strong antiliberal tradition in the South to support a Confederacy of states in rebellion against the national government.  

I am not convinced by Kagan's suggestion that when Trump wins or loses the presidential election of 2024, there will be such a strongly antiliberal MAGA movement that it will support Trump in becoming an antiliberal dictator.