Chief Justice John Roberts Explains Why the Civil War Was Fought and Gets It Wrong

(Source: CNN)

I am not a constitutional scholar so I will refrain from offering any analysis of the Supreme Court’s ruling in this week’s case concerning affirmative action.

In reading part of the transcript from the case I was struck by an exchange between Chief Justice John Roberts and lawyer Seth Waxman, who represented Harvard.

Race, for some highly qualified applicants can be the determinative factor, just as being, you know, an oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player will be the tip,.—Waxman

Roberts responded:

We did not fight a Civil War about oboe players. We did fight a Civil War to eliminate racial discrimination, and that’s why it’s a matter of considerable concern.—Roberts

Who is the “we” in this statement?

If ever the court needed the counsel of a trained Civil War historian, this was it.

Roberts’s claim that the Civil War was fought to “eliminate racial discrimination” is a self-serving narrative that frames American history as inexorably pushing towards the end of racism and white supremacy over the past 160 years.

This is not only an overly simplistic view of the past, it is a myth not unlike the Lost Cause. Historians have written extensively in recent years to undercut this pro-Confederate narrative, especially in connection to the ongoing debate about monuments. During this same time a new narrative highlighting emancipation and the military service of roughly 185,000 African Americans in the United States army has become the dominant narrative.

This “emancipationist” narrative is an important and welcome corrective, but it runs the risk of distorting our past as much as it has the potential to reveal aspects of it that have long been ignored or distorted.

We see this in Roberts’s assertion.

One of the most difficult distinctions to teach students is that between racial equality and slavery. The two are easily conflated and difficult to parse. In the classroom I used a wide range of documents, including political speeches, soldier letters, and visual culture to show that you could call for the end of slavery and not embrace racial equality.

Many United States soldiers, who came from regions where there were very few, if any Black people, were exposed to slavery for the first time while serving in different parts of the South. They interacted with enslaved people and saw for themselves the violence of slavery. Many came to see it is a moral crime, but many more understood that in order to save the Union, slavery would have to be abolished.

This was certainly the case for the junior officer corps of the Second Massachusetts Infantry in which Robert Gould Shaw served through the end of 1862.

(Source: American Antiquarian Society)

Ending slavery was viewed as the fastest way to end the war.

One way to think about the Civil War is that we each passing year racial resentment and racial violence increased. As I have said numerous times, the war could have ended before slavery’s gradual erosion in 1862 through the Second Confiscation Act, the end of slavery in Washington, D.C., and the Preliminary Emancipation Proclamation.

One of my favorite primary sources to use with students comes from Samuel Cox, a Democratic representative from Ohio. In 1862 he spoke for many white Northerners in sharing his fears about what the end of slavery would mean for white Ohioans.

I lay down the proposition that the white and black races thrive best apart; that a commingling of these races is a detriment to both; that it does not elevate the black, and it only depresses the white…. The character of these mixed races is that of brutality, cowardice, and crime, which has no parallel in any age or land. If you permit the dominant and subjugated races to remain upon the same soil, and grant them any approach to social and political equality, amalgamation, more or less, is inevitable….

Is this the fate to be commended to the Anglo-Saxon-Celtic population of the United States? Tell me not that this amalgamation will not go on in the North. What means the mulattoes in the North, far exceeding, as the census of 1850 shows, the mulattoes of the South? There are more free mulattoes than there are free blacks in the free States….

Cox spoke for many white Northerners.

By 1863 white Americans were faced with the recruitment of thousands of Black men into the army in order to win the war, a step that many viewed as a practical necessity and not as a step toward racial equality.

The gradual erosion of slavery and its eventual abolition in 1865 didn’t bring an end to racism or white supremacy; in fact, one could make the claim that the war made race relations even worse. The revolutionary character of the war forced white Americans to confront questions about the future of Black Americans in the country—questions that many were ill-equipped or unwilling to engage.

Radical Reconstruction represented the agenda of a relatively small number of Republicans. It certainly led to substantive change, especially with the passage of the Fourteenth and Fifteenth Amendments to the Constitution, but that it failed to achieve more was, in part, the result of the fact that not enough white Americans were committed to Black civil rights and racial equality.

(Source: National Museum of African American History & Culture)

For these Americans, Reconstruction was accomplished through the defeat of the Confederacy and the readmission of the seceded states.

Please don’t get me wrong. I am not arguing that progress has not been made on the racial front or that the end of slavery was not important. We should celebrate the end of slavery, but that achievement should not be confused with the longer struggle to end racism in the United States.

I worry about attempts to simplify history in this way. Both the left and the right do it for political and ideological reasons, whether it is to paint a picture of inevitable progress on the one side or in the form of an indictment that the nation will never be able to shake. We are as Ibram X. Kendi has stated, “Stamped from the Beginning.”

There is something to be learned from the past, but it can only happen if we acknowledge its complexity and the importance of change over time.

As I stated up front, I am not going to subject you to my own legal analysis of the Supreme Court’s ruling in the affirmative action case, but I will venture to suggest that a flawed understanding of the past almost always points to a problem with whatever it is being applied to explain or justify.