The "Civil War" Was an Insurrection, Too

The threat posed by Trump and the MAGA movement, like the Confederate States, is not “conservative” or even “extremist” but criminally anti-democratic.

Note: A version of this piece was published at The Washington Monthly.  

Today, the Supreme Court rejected Colorado’s decision to keep Trump off of the ballot. Ahead of the ruling, many constitutional scholars and historians made strong legal arguments that Section 3 of the 14th Amendment disqualifies Trump from holding public office again. Others argued that if the Supreme Court upheld a Colorado high court ruling it would compromise the legitimacy of our democratic process.

Here, I want to use this episode to show how the debate was really about the legitimacy of America itself. 

Since the January 6, 2021, insurrection, there has been speculation about whether America might break apart as it did in 1861. Some even fear that removing Trump from the ballot will ignite a new civil war. But when we describe what happened in the 19th century and what we fear coming now as a “Civil War,” we undermine the legitimacy of the American nation. We put the secessionists then—and the MAGA movement now—on an equal footing with the legitimate American government. By doing so, we not only mislabel the threats that Trump and MAGA represent, but also underestimate their dangers.

The original designation of the military engagement from 1861 through 1865 was the “War of Rebellion.” This wasn’t just the Union’s perspective; the Confederate States understood themselves to be seceding to form an independent “slaveholding republic.” They called themselves “rebels.” It was not a civil war in which combatants fought to control one nation. 

The leaders of what I call the Red Nation, which has 10 of the 11 Confederate states at its core, consistently reveal that they do not recognize the legitimacy of the United States. (See the Appendix of my post on “The Two Nations of America” for more on how I define Red Nation.) They continue to be in the same relationship with America today as the Confederate states were before the War of Rebellion—unwilling to accept the legitimacy of the federal government, even if, in most periods, they have acquiesced to its superior force.

When the 14th Amendment was ratified in 1868, it was obvious why Section 3 was included. When a nation cannot disqualify from public office those who have sought to destroy it, it casts doubt on its own legitimacy. That is especially true of the unrepentant Trump. Even Confederate generals admitted they lost by swearing allegiance to the United States. Trump still insists that he didn’t lose. Meanwhile, most Republicans dodge whether President Joe Biden won the election legitimately by grudgingly acknowledging that Biden is president. 

The MAGA faction is not “conservative,” and even calling it “extremist” misses the point dangerously. Those advocating for conservative and even extreme policies should be welcome in a democratic polity. But those acting in ways that reject legitimately constituted authority are neither conservative nor extreme. They are criminal. Thus, if we hope to be a single America, then we must acknowledge that those who claim that the 2020 election was stolen, decry the prosecution of Trump as a crime, call those convicted for their January 6 crimes “political hostages,” and claim that the Rio Grande is Texas’s to defend and not the federal government’s, do not recognize the legitimacy of the United States. They, like their Confederate ancestors, are not patriots. 

When the Constitution was ratified in 1788, the free states saw it as most of us do today—enshrining a government for a unified nation. To the enslaving states, however, the Constitution did not create a single nation. Rather, as Texas Governor Gregg Abbott and two dozen other Red States say, it is merely a “compact” among the states. Due to the gravity of threats from abroad (Britain, France, Spain) and at home (Native Americans and enslaved people), the enslaving states agreed to a mutual defense pact (the Constitution) only insofar as they were confident that it protected their “peculiar institution.” 

At Appomattox, Virginia, in 1865, the Confederates did not surrender so much as acknowledge that their best hope to preserve their “way of life” was not on the battlefield where they were badly outmatched but in a campaign of terror against Reconstruction. Once the South had made Reconstruction too costly to continue, it enacted Jim Crow Constitutions and updated its forced labor economy. This is a well-told story, for example, in Heather Cox Richardson’s How the South Won the Civil War. 

Our devotion to an “America” that strives to be a “government of the people, by the people, for the people” has never been accepted by the Confederate faction, which has always been (and remains) committed to theocracy. We believe that the warrant for government is “the consent of the governed”; they believe its legitimacy is God-given. 

Lincoln: No Longer a Plural Noun

In 1993, Gary Wills won the Pulitzer Prize for his book, Lincoln at Gettysburg, whose central thesis was popularized in an Atlantic article, “The Words that Remade America.” His most striking observation was that “[u]p to the Civil War, ‘the United States’ was invariably a plural noun: ‘The United States are a free government.’ After Gettysburg, it became a singular: ‘The United States is a free government.’” That represented a bold constitutional assertion. Wills writes: 

What had been a mere theory … that the nation preceded the states …now became a lived reality of the American tradition. The results of this were seen almost at once. This was the result of the whole mode of thinking Lincoln expressed in his acts as well as his words, making union not a mystical hope but a constitutional reality. When he spoke at the end of the Address, about government “of the people, by the people, for the people,” he was not just praising “popular government” as a Transcendentalisms ideal, like Theodore Parker. Rather, like Webster, he was saying that America is a people addressing its great assignment as that was accepted in the Declaration.¹

Wills goes on to note that there was still resistance to this perspective: 

For a states’-rights advocate like Willmoore Kendall, for an “original intent” advocate like Edwin Méese, our politics has all been misdirected since that time. The Fourteenth Amendment was, for them, later “bootlegged” into the Bill of Rights. But, even before that, the Amendment was doing its harm in the eyes of strict constructionists. As Robert Bork put it: Unlike the [Amendment’s] other two clauses, it [the due-process clause] quickly displayed the same capacity to accommodate judicial constitution-making which Taney had found in the fifth amendment’s version.² 

But his conclusion took for granted that those were dead end arguments: 

It is this correction of the spirit, this intellectual revolution, that makes attempts to go back beyond Lincoln to some earlier version so feckless. The proponents of states’ rights may have arguments, but they have lost their force, in courts as well as in the popular mind. By accepting the Gettysburg Address, its concept of a single people dedicated to a proposition, we have been changed. Because of it, we live in a different America.

Recently, in a paper called “From Pluribus to Unum? The Civil War and Imagined Sovereignty in Nineteenth-Century America,” the authors take on the question of whether the shift in imagined sovereignty that Wills and most of us have been taking for granted actually happened. They write: 

We explore the effect of warfare in the United States, where the debate over two competing visions of sovereignty erupted into the American Civil War. We exploit the grammatical shift in the “United States” from a plural to a singular noun as a measure of imagined sovereignty, drawing upon two large textual corpuses: newspapers (1800–99) and congressional speeches (1851–99). We demonstrate that war shapes imagined sovereignty, but for the North only. Our results further suggest that Northern Republicans played an important role as ideational entrepreneurs in bringing about this shift.

Cutting the Branches, Leaving the Roots

Consider Germany, which is rightly credited for taking responsibility for the Holocaust. Last summer, I visited Berlin and saw how robust these efforts have been. For example, the sidewalks in residential neighborhoods have been broken up by Stolpersteine—stumble blocks—which call attention to the homes the Nazis stole from Jews and, where known, the fate of those Jews. But it’s not as if there aren’t similar landmarks commemorating our past, including the Legacy Museum/Lynching Memorial in Montgomery, Alabama, the National Center for Civil and Human Rights in Atlanta, Georgia, and the National Museum of African American History and Culture in Washington, D.C. 

No, the real difference is exactly the difference between conceptualizing today's toxic politics as “civil war” or “polarization” instead of a rebellion. In Germany, the idea that there would be monuments or streets named after Adolf Hitler or his generals is unthinkable. No popular culture there valorizes those who fought for the Führer or waxes nostalgic for a lost way of life. There’s no bawdy comedy, The Dukes of Bavaria.

The photo on the left, taken in 1939, is featured in Berlin’s Topography of Terror Museum as a reminder of how casually everyday Germans used to embrace Nazism. The photo on the right was taken in 2020 in a suburb of Chicago.

Contrast that with the rapid incorporation of Lost Cause mythology into American culture. By 1915, The Birth of a Nation was screened in the White House. Gone with the Wind remains the highest-grossing film of all time and ranks sixth on the American Film Institute’s list of the 100 best American movies. Even today, 150 years after Confederates waged war on the United States to preserve their ability to buy, sell, rape, and torture human beings, it remains controversial to remove states of Confederate generals. We continue to sanitize America’s enslaved labor camps by calling them “plantations.” Plenty of people still have weddings there. 

Whistling Past the Graveyard

You can think of MAGA as a fascist movement or as the “legitimate” expression of a theocratic Red Nation that is in a cold war with the Blue Nation, or both. (In the 21st century, the Red Nation has also been making inroads in the purple states.) Either way, the MAGA movement is an enemy of liberal democracy and has taken over the Republican Party. Its and MAGA’s continued success in building its preferred version of America depends on the political class’s stubborn refusal to call out the Republican Party for what it has become. 

No matter how many times the Confederate Faction signals that it does not accept the legitimacy of the American project, we refuse to believe them. We reflexively reinterpret attacks against America as mere disagreements or empty rhetoric aimed at their MAGA base, even as our attackers lack no clarity about their own intentions.

We are like the European powers who, fearing another world war, managed to convince themselves that each agreement Hitler broke would be the last rather than evidence that he would break the next one.

In reality, our choice in November is whether to keep giving the benefit of the doubt to rebels who believe that theirs, not ours, is the legitimate cause. 

1. Wills continues, “This people was “conceived” in 1776, “brought forth” as an entity whose birth was datable (“four score and seven” years back) and placeable (“on this continent”), something that could receive a “new birth of freedom.” By giving this language a place in our sacred documents, Lincoln changed the way people thought about the Constitution.” 

2. More from Willis: 

“Bork, too, thinks equality as a national commitment has been sneaked into the Constitution. There can be little doubt about the principal culprit. As Kendall put it, Lincoln’s use of the Declaration’s phrase about all men being equal is an attempt ‘to wrench from it a single proposition and make that our supreme commitment.’

We should not allow him [Lincoln]—not at least without some probing inquiry—to “steal” the game, that is, to accept his interpretation of the Declaration, its place in our history, and its meaning as “true,” “correct,” and “binding.”

But, as Kendall himself admits, the professors, the textbooks, the politicians, the press have overwhelmingly accepted Lincoln’s vision. The Gettysburg Address has become an authoritative expression of the American spirit—as authoritative as the Declaration itself, and perhaps even more influential, since it determines how we read the Declaration. For most people now, the Declaration means what Lincoln told us it means, as a way of correcting the Constitution itself without overthrowing it.”