No Good Deed Goes Unpunished: A Simple Misunderstanding

In response to my post yesterday, Corey Robin has a blog post on Crooked Timber based on a good faith, but uncharitable misreading of this prefatory sentence on my piece.

I wish to add a few additional considerations that I have become aware of over the past several years as I have researched and written about “abolitionist constitutionalism” and the career of Salmon P. Chase.

Here is his argument:

Major Premise: Randy Barnett is a smart libertarian guy!

I should preface this by saying that I think Barnett is one of the most interesting and thoughtful libertarians around. I’d happily read him on just about anything. He’s a forceful writer, who eschews jargon and actually seems to care about his readers.

Minor premise:  Randy Barnett admits that he did not know the conventional interpretation of the Civil Way and slavery until recently.

What’s striking about this set of observations is that with some minor exceptions it has been pretty much the historiographical consensus for decades. Indeed, I learned much of it in high school and in my sophomore year at college.  Yet Barnett, by his own admission, has only discovered it in recent years.

Leading to this conclusion:  That someone like Barnett thought this shows that libertarians are generally oblivious to what everyone else knows about the Civil War and slavery.

To the contrary: it’s because I have respect for Barnett that I am surprised. We’re not talking here about libertarianism’s Praetorian Guard. Barnett is a major scholar, who’s actually been thinking and writing about abolitionism and its constitutional vision for some time.  That a libertarian of such acuity and learning, of such range and appetite, would have come to these truths only recently and after intensive personal research tells you something about the sauce in which he and his brethren have been marinating all these years.


 That Barnett—who’s been prodding libertarians on this issue for some time—has only recently gotten the news tells you much about his movement’s morning prayer, the sense of reality it brings to the table. The problem here isn’t merely that some, perhaps many, libertarians are overt fans of the Confederacy; it’s what the movement’s been reading in its afterglow, long after the light went out.

I leave to Volokh commenters to dispute the major premise.  If the minor premise is wrong, however, so too is the conclusion.  And it is wrong.

Like Robin, I have been well aware of the consensus on these views since high school and college.  The point of my opening sentence, however, was to note that I have been studying this period seriously over the past several years as part of my research on the “constitutional abolitionists” and the career of Salmon P. Chase, and what followed was informed by that study and was not just repeating the conventional wisdom off the top of my head.  And, although my interest in abolitionist constitutionalism dates back to a lecture on Lysander Spooner’s theory of constitutional interpretation that I gave at McGeorge in 1996, my appreciation of these issues and their subtleties has been greatly enriched by my intensive reading of both secondary and primary sources in recent years as I broadened my focus well beyond Spooner.

The sentence that misled Robin was badly enough written to be misconstrued by him because it was written before the 6 bullet points that followed, which touched upon more than the role abolitionist constitutionalism played in the formation of the Republican party and the fear it engendered in the South, and because the misreading I now see is possible simply did not occur to me.

So I thank Robin for all the complimentary things he said about me, and reassure him that he was misled by my inartfully written introductory sentence. 

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