Civil Liberties and the Civil War
Photo Credit: Tom GillOne hundred and fifty years ago, on July 4, 1863, twin Union victories at Gettysburg and Vicksburg decisively turned the course of the Civil War. One consequence of that victory was the emancipation of slaves in America. Another consequence has been the invention of a dangerous myth: that the federal government is the best vehicle for protecting civil liberties.
This myth has been so potent that when the Supreme Court ruled this June that the “preclearance” provisions of the Voting Rights Act no longer applied to suspect jurisdiction, which included nearly all of the South, self-anointed “civil rights” leaders warned of great dangers. Even among many conservatives, there is the false understanding that the Bill of Rights was intended to protect our liberties from all government.
Actually, the Bill of Rights is intended to protect American citizens and American states from the federal government, which was understood to be the greatest threat to civil liberties. After the Civil War, the Supreme Court invented out of whole cloth the “Incorporation Doctrine” by which the Bill of Rights in the Constitution was deemed to apply to states as well as the federal government.
This was utterly unnecessary: every state has its own Bill of Rights, and the first thirteen states had these bills of rights in force before the federal Bill of Rights or even the Constitution. These state bills of rights typically provided more civil liberties than the federal Bill of Rights.
Why, then, have Americans been persuaded that we need the federal Bill of Rights, federal laws, and federal courts to protect our civil liberties? The legacy of the Civil War is the sole basis for this curious and flawed reasoning. Grasping the irrationality of this belief requires dipping into American history before the Civil War.
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