Was the Civil War unconstitutional?

Civil War re-enactors battle during the 150th anniversary of the Battle of Bentonville on March, 21, 2015 in Four Oaks, N.C. News & Observer photo.
Civil War re-enactors battle during the 150th anniversary of the Battle of Bentonville on March, 21, 2015 in Four Oaks, N.C. News & Observer photo.
Sammy Aiken, a member of the 37th U.S. Colored Infantry Civil War Reenactors, stands by an exhibit at the N.C. Museum of History on Jan. 28, 2017.
Sammy Aiken, a member of the 37th U.S. Colored Infantry Civil War Reenactors, stands by an exhibit at the N.C. Museum of History on Jan. 28, 2017.

People often call Douglas MacArthur the American Caesar. But was Abraham Lincoln the American Hitler?

That was what one North Carolina lawmaker said while arguing online Wednesday – which also happened to be the anniversary of the Confederacy’s capture of Fort Sumter, the official start to the Civil War.

The dubious analogy came up after Rep. Larry Pittman, a Republican from the Charlotte suburb of Concord, sponsored a bill to make gay marriage illegal once more in North Carolina.

On Pittman’s Facebook page, people pointed out that the bill was obviously unconstitutional, since the U.S. Supreme Court ruled in favor of gay marriage.

One critic wrote that Pittman should "get over it."

Pittman said he would not.

"And if Hitler had won, should the world just get over it?" the legislator responded. "Lincoln was the same sort (of) tyrant, and personally responsible for the deaths of over 800,000 Americans in a war that was unnecessary and unconstitutional."

Pittman’s controversial stance has since gone viral, leading to widespread condemnation – even from some of his fellow Republican lawmakers. But viral reactions aside, we were interested in the facts of what Pittman had to say.

He hasn’t publicly explained any part of his claim yet. But we interviewed a number of historians and legal experts – on both sides of the Mason-Dixon line – all of whom roundly dismissed Pittman’s claims.

"Ludicrous," "patently ridiculous" and "generally not a helpful way of making a serious point" were just some of the criticisms they had for comparing Hitler (a genocidal dictator who presided over the Holocaust) to Lincoln (a democratically elected president who fought against slavery).

But we wanted to look past that to focus on what Pittman had to say about the war itself.

Talk of the Civil War being "unnecessary and unconstitutional," as he said, is well-rooted in the South’s post bellum culture. Some people still refer to it as The War of Northern Aggression.

When it comes down to it, these are matters of opinion, which we don’t fact-check. But scholars of history and the law, including all of the people we interviewed, tend to disagree with Pittman’s interpretation.

An "unnecessary" war?

The historians we spoke to said Pittman was also wrong to call Lincoln "personally responsible" for 800,000 dead. Not that many people died in the war, they said, and Lincoln doesn’t hold full responsibility.

Dan Sutherland, president of the Society of Civil War Historians, said he thinks war could have been avoided in the years leading up to it.

"People on both sides – mainly the politicians – simply miscalculated and mishandled a number of issues that, if approached differently, might have produced another outcome," said Sutherland, who is also a history professor at the University of Arkansas.

But once the Confederacy took Fort Sumter, experts tend to agree, there was no going back.

Paul Finkelman, a legal historian who teaches constitutional law at the University of Pittsburgh Law School, said the war was clearly necessary.

"The President of the United States has an absolute obligation to defend the nation from a military attack, right?" Finkelman said. "... And the United States did not make war on the Confederacy. The Confederacy made war on the United States."

Tara Helfman, a Syracuse University Law School professor and co-author of "Liberty and Union: A Constitutional History of the United States," also agreed but for different reasons.

"If war is politics by other means, then the Civil War was necessary," she said. "When Southern secession began in 1860, it was because any national political compromise on the slavery question had become impossible."

An "unconstitutional" war?

Secession is apparently an issue Pittman thinks about a lot. Earlier this year he co-sponsored a bill that would have changed the North Carolina constitution to remove its ban on secession.

But before the Civil War, there was no explicit ban on secession. That has led many people to make a 10th Amendment claim (the "states’ rights" argument) in favor of secession.

But that doesn’t really hold water among academics, said William Blair, a history professor at Penn State University, director of the George and Ann Richards Civil War Era Center and founding editor of The Journal of the Civil War Era.

"Lots of people point to the first line of the Constitution, 'In order to form a more perfect Union,’" said Blair, in order to discredit the argument that a group of states could unilaterally secede.

Sutherland added that concerning states’ rights, "The only persistent and legitimate point of contention concerning interpretation of the Constitution is the correct balance of those powers between national and state authority."

In other words, the constitutionality of secession is not a "legitimate point of contention."

Finkelman said Pittman’s claim "makes no sense" because "there’s no suicide clause" in the Constitution that would let individual states dissolve the federal government. Any legal attempt at secession, he said, would likely have to go through Congress.

"That’s how laws work," he said. "They don't work by a group of thugs and terrorists getting a gun and starting saying, ‘We don't like the government.’"

Helfman said Lincoln believed the legal mandate to keep the country together went back past the Constitution, to the Articles of Confederation. Yet the Southern states, she said, "believed that they had a fundamental right to secede from the Union when it failed to represent their interests, and that they also had a fundamental right to constitute a new government that would.

"Lincoln's view prevailed on the battlefield," Helfman continued. "Since then, it has also prevailed in the courts."

She’s right, said Blair, who pointed to two cases immediately after the war. One made it clear individual states had no right to unilaterally secede (Texas v. White in 1869). Another ruled the Confederacy was not a legitimate government (Shortridge et. al. v. Macon in 1867).

The Macon case involved a North Carolina man who wanted the Confederacy to repay his loans after the war. He was denied by Supreme Court Chief Justice Salmon P. Chase.

Chase wrote that the Confederacy never legally existed, and fighting on behalf of "the so-called Confederate government" amounted to "treason against the United States."

For most historians, legal precedent like that has been enough to settle the matter. But clearly some contrary opinions still remain.