Historians sometimes underestimate the central role that war plays in American history in general, and the history of American civil rights in particular. The high stakes of war favor unity over dissent and homogeneity over diversity; the aftermath of war brings about celebration and cultural release, creating new opportunities for social justice movements. What's more, war is itself violent—and violent policy against those living outside of the United States can set troubling precedents for people living within it.


The history of American warfare rests against the backdrop of the relatively low-casualty American Revolution, which was different from the wars that followed it inasmuch as it was essentially a battle between a loosely-organized group of smugglers and an overseas empire that demanded more of them than they were willing to give. Characterized by those who waged it as a war for freedom and natural rights, it was much less abstract than that; the white male landowners who declared independence from Britain were marauders, slaveowners, and plutocrats, and their interests were more economic than philosophical. But after the war, the inspiring moral philosophy to which they had given so much lip service inspired a Constitution that would establish the rule of law and, over a period of centuries, broaden to the point where it would actually protect the civil rights of the majority of Americans. These kinds of accidental advancements in civil liberties policy are more-or-less typical of U.S. history as a whole.

Though there is a clear exception: it is difficult to say anything of substance about the civil liberties implications of the new nation's treacherous conquest of American Indian territory, for the simple reason that the United States appears to have learned absolutely nothing from it. If we accept the humanity of the people who were killed and displaced (and U.S. leaders demonstrably did not), the genocidal scope of what our young nation did is too offensive to the most fundamental concept of civil liberties to sustain a measured analysis. There is nothing to measure. If the government of 18th- and 19th-century America treated its white inhabitants the way it treated American Indians and black slaves, nobody would even dream of calling it a democracy. The racial hierarchy—the idea of white male supremacy—is the only lens through which we can plausibly look at a country that practiced genocide and mass slavery and describe it as the proverbial land of the free and home of the brave.

For similar reasons, it is understandable that many civil libertarians give President Abraham Lincoln a pass on the civil liberties violations he authorized during the American Civil War. They are so easily excusable not because it was wartime, but because habeas corpus protections only applied to a fraction of the population in the first place. The South went to war specifically to preserve the subhuman legal status attributed to African Americans, and the fact that Lincoln temporarily suspended the habeas corpus rights of a few white rebels in the process of fighting that rebellion should not scandalize us. The fact that the U.S. Supreme Court had completely dismissed the idea of habeas corpus rights for African Americans less than a decade earlier, in Dred Scott v. Sandford (1857), dwarfs that consideration. In order to prioritize our discussion of habeas corpus in the American Civil War, we would have to make the argument that white people should be the focus of civil liberties policy. This is an argument that few would make explicitly, and they should not make it implicitly by prioritizing the rights of a small number of improperly imprisoned Confederates over those of the millions of improperly, and permanently, imprisoned slaves. 

From a civil liberties perspective, the less widely recognized constitutional legacy of the American Civil War is that the radicalism of the South inspired an equally radical textual response: the Fourteenth Amendment of 1868, which gives teeth to the Bill of Rights, mitigates the bizarre concept of "state's rights," and (at least in theory) permanently protects us all from government-sanctioned discrimination of all kinds. We're still learning new applications of that amendment, and it's unlikely that it ever would have been ratified at all had the American Civil War not taken place. It does not follow that the American Civil War was in any sense good, but—horrific though it was—it bore some good fruit.

It is difficult to say the same about any subsequent war. World War I's Sedition Act and Red Scare, World War II's mass relocation of Japanese Americans, and the climate of government surveillance that surrounded the Vietnam War were all followed by inspiring social justice developments—World War I by suffrage and the national civil liberties movement, World War II by second-wave feminism and the integration of the U.S. armed forces, and the Vietnam War by legislation restricting executive power. But it does not follow from this that the wars were in any sense necessary to these developments, which can more obviously be traced to industrialization and the increasing racial and ethnic diversity of the United States. 

And there appears to be very little immediate good, from a civil liberties perspective, that can come from the War on Terror. While there is still time for Congress and the Obama administration to scale back the excesses of the Bush administration, there is no evidence that we have learned any real lessons from all of this—and no evidence that war has anything left to teach us.