Review of Ross Douthat's Review(s) of Civil War (2024), by way of Civil War (1861)

Civil war as legitimacy crisis

Ross Douthat’s Civil War: only in theatres!

Alex Garland’s Civil War

I saw Civil War today.

Of course I saw Civil War. Out of all your friends, I’m the one who has spent the most clearly unhealthy amount of time thinking about a Second Civil War. I was going to see it even if it opened on two screens at an indie theatre in Albertville. Then it got great reviews and turned into the #1 movie in America!

Unfortunately, it was bad.

Civil War made one fundamental, transcendentally brilliant decision: to sever itself from contemporary politics. The movie tries hard to stay above red-versus-blue politics, since, in these polarized times, any movie that could be interpreted as a masturbatory fantasy about defeating the “other tribe” by military force would be interpreted that way, probably by both sides. It would amplify polarization and be consumed by it.

Instead, the movie makes sure we don’t understand who is fighting or why. All we know is that California and Texas have allied with one another in a war against the Midwestern president running D.C., and that both sides are also at war with Florida. The backstory hardly matters. Everyone is wearing fatigues anyway and you can’t tell exactly which side anyone is on. Nobody explains why they’re fighting, beyond the obvious: “Ma’am, there’s a man in that house who’s trying to kill us.”

Where Barbie tried to wriggle free of politics by wallowing in it, Civil War simply doesn’t give politics the time of day. By imposing this wall of separation between movie politics and real-world politics, Civil War creates space to explore the parts of civil war that aren’t political: the carnage, the suffering, the psychology of the fighters, the agency of civilians, the value of journalism.¹ This is a tremendous creative opportunity, a middle finger to the trends of our age.

Civil War totally blows that opportunity.

Characterization? Sure, you could spend two hours watching Kirsten Dunst and Wagner Moura in agonized closeups, but you’ll have a much richer and deeper sense of character if you watch the first episode of Bluey, which is 11 minutes long.² Plot? Writer-director Alex Garland has a certain trademark restraint (which I loved in his Dredd), but… Civil War is a road trip movie. As soon as they get in the car, you know every beat they’re going to hit and every choice every character is going to make, right to the end of the movie. You might as well place bets on when the elder mentor character will heroically die.³

Ah, but perhaps the movie isn’t about plot and character! It’s about the power of the image! A true film for filmmakers! It’s a series of vignettes, but those vignettes each deliver visuals that sear the heart and redirect the soul! In case you don’t grasp the import of these images, you will be taught about the importance of images by the lead characters, who are all (because Alex Garland is not subtle) photojournalists! See, Joss? It’s compelling!

Sure, cool idea, but the images aren’t very powerful and add up to nothing. This is an entire movie technically about war photography that fails to show us why we should care about war photography. The closest the movie comes is when the protégé character says that war photography made her feel alive. Okay? So does snorting crack off park benches. Doesn’t make it a good idea. As my real-life friend Zac said after the show, the message Civil War conveys is either “journalists are pointless,” or Civil War considers the nobility of journalism so obvious it needn’t be illustrated—which, given the state journalism is in these days, would be insane. (Journalists are very probably the cause of the war in Civil War, but that’s a hot take I’ll save for the pay newsletter.)

Instead, the power of the cinematic image could have been used to give the audience a good old-fashioned wet-your-pants scare. A Civil War II in the United States would be unimaginably bad. The first Civil War killed 2% of the U.S. population in the line of duty alone. With modern warfare, vast civilian ownership of guns, and the profoundly fragile infrastructure of the modern world, Civil War II would be hell on Earth. Think of every civil war you’ve ever seen on the news—Syria, say—and then multiply it by ten because you’ve barely tasted the horrors of those distant wars in the papers, then multiply it by ten again, because America is so much more capable of self-immolation.

Civil War’s highest and best use was to show us the misery we would all suffer in a civil war, then leave us with the unsaid question: is it worth it? Whatever you think you might go to war over—the sanctity of democracy, the lives of the unborn, the rights of LGBTQ+ people, whatever—is it worth it? If Civil War had honestly showed the horrors awaiting us behind the doors of Mars, the answer for everyone forever would be “no.”

Instead, Civil War barely showed us civilians at all, and most of them had electricity. (Electricity!) It is clearly established in dialogue that quite a lot of Americans are doing just fine, off in Missouri and Colorado, having a nice cold pint at the Winchester and waiting for this all to blow over. For those in the war zone, the horrors of war are scattered and tame: we see two looters who’ve been tortured, scattered urban fires, deserted malls, assorted minor atrocities, a few shots of a refugee camp, and—most horrifying of all—a revealed preference for Canadian currency, aka Loonie Supremacy. This is not Hell. Therefore, Civil War is a failure.

Unfortunately, it isn’t a very interesting failure. It was a nice way to pass the time with my popcorn and I don’t have very much to say about the movie beyond that.

Ross Douthat’s Civil War

On the other hand, Ross Douthat’s two reviews of the movie, in National Review and especially The New York Times (gift link), were plenty interesting. At least, they gave me a lot more to work with than my 109 minutes locked in a car with Thufir Hawat.

Douthat, who is usually correct, starts by drawing the correct conclusion about Civil War: it is bad.

Douthat also grasps what the movie is trying (but failing) to do:

But here we are, with looters being tortured inside a car wash, snipers firing from a roadway lined with Christmas decorations, and a crashed helicopter outside a JCPenney. These images are the movie, basically, since the characters are sketches with obvious arcs. …And the absence of both how-we-got-here explanation and clear lines of ideological division is supposed to keep our eyes firmly on the pointless carnage, to deny us any kind of rooting interest or hope of ultimate catharsis.

Alas (like most people who think Civil War is bad), Douthat sees the void created by removing politics from the movie—Civil War’s most striking creative decision—and concludes that the void must be the reason the movie is bad:

Some people who dislike the movie — I am one of them — think that the underexplanation is a total cop-out, making civil strife seem like a natural disaster or a zombie apocalypse, when in reality it usually represents the extension of politics by awful but reasonable-seeming means. If you refuse to give those reasons, to explain how exactly the politics of today’s America could yield our own version of 1990s Yugoslavia, you haven’t actually made a movie about an American civil war; you just have war as a generic signifier that happens to have strip malls and subdivisions in the background.

This criticism is misplaced because there is no such thing as an “American” civil war. Sure, the way our first civil war began was uniquely, profoundly American. So was the way it ended—the glorious defeat of the Slave Empire; the generous terms of surrender, honorably obeyed by rebel gentlemen great and small; the mixed bag of Reconstruction. But from Sumter to Appomattox, the war’s course was little influenced by the national character. Instead, it was shaped by the emerging technology of modern warfare, the numbers game of logistics & production, the adaptability of military leadership to those circumstances, ordinary human martial virtue (or vice), and a hell of a lot of luck. The archetypical battle of the Civil War was not the heroics at Little Round Top but the chilling math of Cold Harbor. There is no “civil war with American characteristics.” There is just war, and, as General Sherman said after, “War is all hell.” A movie about the middle of the war was always bound to feel generic, because that’s true.

Now, you could make a movie about the beginning of the American Civil War. It could be fantastic. I’m feeling creative tonight, so here’s the opening:

Black screen.

TITLE CARD
“They all know it is there, all the people of Omelas.

MAN [voice over]
One!

The crack of a whip. A child, a boy, lets out a piteous scream. A few more words fade onto the screen:

TITLE CARD
They all understand that their happiness, the beauty of their city, the tenderness of their friendships, the health of their children, even the abundance of their harvest, depend wholly

MAN [voice over]
Two!

Another whip crack. Another cry, more horrible than the last. Broken weeping after. A few more words:

TITLE CARD
on this child’s abominable misery.” —Ursula K. Le Guin

MAN [voice over]
Three!

As the whip cracks this time, the title card vanishes as we abruptly cut to:

EXT. EARLY MORNING - A WHIPPING POST

We see the boy, Black perhaps twelve years old, with two hideous scores already across his back, just as the whip comes down to deliver a third.

TITLE CARD [fading in]:
Monday, October 17, 1859
(pause)
Charles Town, Virginia

We hear a horse galloping up.

MAN: The hell?

We see him for the first time, though the whipped child continues crying in the background, as he turns, lowering his whip hand to regard the approaching horse, which rears as the young White rider tugs the reins:

MESSENGER: Mister Watson, sir!

MAN: What?

MESSENGER: Sir, they’ve called out the militia! There’s a slave revolt just down in Harper’s Ferry!

John Brown’s raid on Harper’s Ferry, a year before the Civil War, was a totally failed insurrection, only a little bloodier than the Trump Insurrection of 2020, but the action of the raid—where Brown was stopped by Col. Robert E. Lee, USMC—would make a great opening three minutes. Even more importantly, the intense, divisive sectional passion over Brown’s trial and execution would make a great next five minutes. Southern newspapers called for the harshest penalties, while some Northern cities actually lowered their flags to half-staff when he was executed. This makes a good segue into the slow-moving legal drama that culminated at Fort Sumter.

Heck, with that opening, you’d never have to show a suffering slave again during the movie. You could let the soon-to-rebel Southern senators give their dire speeches about the extinction of “Southern liberties” at the hands of the North, their crocodile tears about Southern honor, their noble-sounding grief at the way Northerners had ignored the rulings of the Supreme Court… and the whole audience would remember that child screaming.

The problem with this hypothetical movie is that it would not, and could not become, a movie about the war itself. It pretty much has to end at or just after Sumter, because that’s where its narrative arc lands. We already have a magnificent movie about the Civil War’s ending, Lincoln, and it faces the same constraint: it can’t show us the war itself because it’s busy. The seminal “civil war movie,” Gettysburg (1993) makes very little room for the causes of the conflict, despite its four hour runtime.⁴

Civil War would be completely different from stem to stern if it were forced to be a “causes” movie. Nor could it just toss a quick explanation into an opening crawl (Star Wars-style), because any such explanation would sound stupid and absurd to the audience and we would pick it apart. All civil wars sound stupid and absurd until, quite suddenly, they become inevitable. (More on this later.) In order to be about anything other than contemporary politics, Civil War really did need to sever itself completely from contemporary politics. Creating that void was inspired. The movie failed only because it didn’t fill the void with anything. That left us, as Douthat (correctly) put it, with:

a bunch of meant-to-shock surfaces, with nothing underneath.

Douthat doesn’t stop there, though!

A lot of people think that… the path to a Second Civil War is self-evident… so here is a short list of the reasons they’re wrong:

• America’s ideological divisions don’t follow the kind of geographical or regional lines that lend themselves to secessionist movements or armed conflict.

• America’s political coalitions have become less polarized by race and ethnicity of late, not more.

• America is getting older and richer with every passing year, both of which strongly disincentivize transforming political differences into military ones. And such disincentives are especially strong for the elites who would need to divide into opposing camps: Texan or Californian power brokers, for example, both have far more influence as powerful stakeholders of the American empire than they would as leaders of a Lone Star or Bear Flag Republic.

• Above all, a civil war needs people eager for the fight. … [R]elative to past eras of crisis in our history, from the 1860s to the 1960s, Americans today just do not display any great enthusiasm for politically motivated violence. Instead, the gap between the Sturm und Drang online and the handful of Trump supporters at the courthouse this week is representative of one part of our condition: an enthusiasm for online conflict, virtual combat, rage tweets and hate clicks as substitutes for brawling and bombing in the real world.

Douthat is correct that the path to a Second Civil War is not self-evident. Like the path to the First Civil War, it is full of surprises for those who walk it, and it is tortuously slow. Many “next American Civil War” articles floating around are careless, even brain-dead. They tend to make a giant flying leap from “some Americans get so mad they’re willing to engage in violence” directly to “continent-spanning civil war with millions of men under arms,” without describing any of the intermediate steps. The true road to war would be boring and tedious and far, far too long for the standard 750-word column.

I know this because I wrote the book on it (or, at least, the novella). In August 2020, after over a year of work, I published one of my most popular posts: a 35,000-word fictional history of how the 2020 election could go off the rails and—between November 2020 and February 2021—spiral into opposing units of the United States military opening fire upon one another. In the course of the writing, I accidentally predicted something strikingly close to the Eastman Memo, the defects in the Electoral Count Act, and much of the legal drama of January 6, four months before it happened. (I was off on the violence: I had disorganized the right-wing mob trying to derail the inauguration on January 20 instead of the certification on January 6.)

However, I think Douthat misunderstands how civil wars really start. He thinks of these things—geographic and ethnic polarization, elite willingness to give up power or and/or wealth, and widespread enthusiasm for violence—as preconditions for civil war. (Why ethnic and not class or education polarization?) Since we don’t have those preconditions today, he thinks civil war here is impossible, at least without some major new transformative crisis:

So if you were really interested in what it would take for the United States to actually plunge into armed conflict, to be divided into warring camps and not just polarized blocs of voters, the lesson of 2020 is that you should be looking for some kind of rupture, some world-shaking external or internal force, as the necessary precondition. Maybe a pandemic substantially worse than Covid… Maybe a great defeat in war and an economic crisis… Maybe some radical technological development… Maybe a true climate crisis…

Douthat shares Curtis Yarvin’s view that the American people today simply do not operate at a high enough “political energy state” to be capable of doing much of anything, least of all fight a sustained, bloody war. There is something to this. America’s failure to grapple with several failed provisions of its own Constitution, just because amending the Constitution seems too darned hard, smacks of learned helplessness among voters and politicians alike.

However, when it comes to civil war in particular, I think Douthat is mistaken, because all the “preconditions” he’s looking for—polarization, elite compliance, and the appetite for violence—are not preconditions at all, but consequences of the engines driving civil war. Once you have those engines up and running, no further crisis, internal or external, is required to drive a nation into the abyss. The engines will create their own “political energy state.”

In truth, the only precondition of civil war is partisan hatred. The only catalyst is legitimacy crisis. These are your engines. Partisan hatred increases polarization and the appetite for violence (slowly). All three, in tandem, (slowly) raise the odds of a legitimacy crisis. Legitimacy crisis is an accelerant for partisan hatred, which means that, even if you survive a legitimacy crisis, the next one arrives much faster.

By “legitimacy crisis,” I mean a situation in which different citizens sincerely disagree, at a very basic level, about what the law is and which persons have the authority to make or enforce it. A legitimacy crisis is not a law review paper suggesting that paper money is unconstitutional; a legitimacy crisis is half the country thinking one guy is the de facto and de jure President while the other half of the country sincerely believes some other person is the President. This happens when unforeseen circumstances arise with no clear legal resolution and both sides choose to play hardball.

When a legitimacy crisis occurs under pre-existing conditions of partisan hatred, polarization and the appetite for violence follow as a consequence. Internal and external crisis can contribute to civil war, but only insofar as they help provoke the legitimacy crisis. The legitimacy crisis itself does most of the actual work bringing about the war.

Now, I’ve recently been reading Marx and Lenin (“know thine enemy”), and they have been driving me insane because they constantly make sweeping statements about The Inevitable Engines Of Historic Destiny, label it “analysis,” provide zero concrete historical examples, and pretend that makes it “scientific” enough to justify executing the kulaks. My analysis in the last three paragraphs is far from a proof, but let me at least flesh it out with a concrete example: the last American Civil War.

Jeff Davis’s Civil War

The Civil War was the product of partisan hatred and legitimacy crisis alone.

In 1857, the Supreme Court handed down the Dred Scott decision. Chief Justice Taney’s 7-2 decision is remembered today chiefly for its holding that Black men were “so far inferior, that they had no rights which the white man was bound to respect.” In 1857, though, the political dynamite was SCOTUS’s conclusion that Congress had no power to infringe the “right” to slavery on federal land, including the federal territories. Dred Scott held the Missouri Compromise of 1820 unconstitutional and gave the Southern Slave Power what it had demanded for years: guaranteed, permanent access to the rich lands west of the Mississippi.

These holdings were, of course, based on obviously deranged misinterpretations of the Constitution. Taney invented the “right” to slavery out of thin air, then elevated this unwritten right over the actual federal powers set out in the actual Constitution. His bizarre recounting of “history” and his cruel legal conclusions were perhaps not quite as unhinged as those adopted by another 7-2 court a century later, in Roe v. Wade, but their logic was strikingly similar⁵—and its effect on our politics even more explosive. Just consider the effect Roe v. Wade had (and continues to have) on American politics, and try to imagine that Dred Scott was like that but moreso.

Worse yet, Dredd Scott seemed to set the stage for even more expansion of slavery: its “substantive due process” reasoning about the “liberty” to transport slaves could easily be extended from federal territories to other states! Abraham Lincoln and others openly feared that Taney might have been laying the groundwork to declare a national constitutional right to own slaves, instantly turning every free state, against its will, into a slave state.⁶

It is important to emphasize here that the Supreme Court’s ruling was legally incorrect. It came from the Supreme Court, but it was objectively wrong. The new Republican Party felt justified, then, when it vowed to defy the Dred Scott ruling. The Republicans agreed that the decision bound Dred Scott personally, but insisted that the Supreme Court could not reach so far outside the facts of the case to curtail Congress’s plain constitutional power to regulate slavery on federal land. The Republicans promised to continue to exclude slavery from as many federal territories as they could.

On the other hand, the South accepted the Supreme Court’s ruling. Nearly everyone, then and now, is willing to accept flagrantly stupid legal rulings as works of constitutional genius if they happen to support their conclusions. (Again: Roe v. Wade.) The South was no exception. They believed in the Dred Scott decision fervently, and demanded that the North abide by it, in the name of the Constitution!

Worse, slaveholders saw Republican resistance to Dred Scott as adding insult to injury. For decades, Northern abolitionists had worked by hook and crook to craft state laws that effectively nullified the Fugitive Slave Clause of the Constitution.⁷ These efforts were sometimes clearly legal, sometimes very questionable, but they all violated the spirit of the Constitution,⁸ and the slavocracy considered all of them outrageous affronts to the rule of law. They had retaliated by violating the Constitution “tit-for-tat” (as they saw it): they illegally reopened the Atlantic slave trade, which the Constitution had helped close in 1808. (This was done largely through jury nullification.) Flouting Dred Scott, however, was an escalation—and, for the South, a bridge too far.

This, then, was the first legitimacy crisis: the Supreme Court issued a ruling, which the Democrats regarded as vital, valid, binding on Congress, but which the Republican Party denounced as unlawful, and which they vowed to defy.⁹

The crisis slowly rose to a boil under President James Buchanan. Buchanan was pro-slavery, supported the Dred Scott decision, vigorously enforced the fugitive slave laws, and worked very hard to admit “Bleeding Kansas” to the Union as a slave state. As long as Buchanan was in charge, the Slave Power of the South had hope that the Constitution, as they understood it, might be enforced. However, the newborn Republican Party made steady gains in intra-term elections. In 1860, they ran Abraham Lincoln for President. Lincoln’s platform was brazen:

No slave state would be permitted to join the Union. No slavery would be allowed in any territory of the United States—not even south of the Missouri Compromise line, where it was traditionally protected—the Dred Scott decision be damned! (The Republican platform branded Dred Scott “a dangerous political heresy.”) Kansas would be free, abolitionist subversion of the Fugitive Slave Acts would be shielded, and the reopened slave trade would be crushed. To slavocrats, this was not only the death of slavery, but open desecration of the Constitution.

Then Lincoln won. It wasn’t even a good clean win. Lincoln got 40% of the national popular vote, but it was heavily concentrated in the North, which won him a lot of electoral votes. The Democratic candidates (there were two, because the party split that year) got 48% of the vote, but it was spread out too much. A third-party candidate (who supported slavery more than he supported the Union) got the remaining 12%. Lincoln was indisputably the winner under our electoral college rules… but it was one of those presidential elections where people can fairly say that the result was not really all that democratic.

The South now faced an incoming President who was (in their eyes) an avowed enemy of the Constitution, who openly defied court rulings, who was determined to strangle their “way of life,” and who hadn’t even won the support of the majority.¹⁰ The “Tyrant Lincoln” was backed by a Republican House that looked likely to enjoy a majority for a while, and even the Democratic Senate was too populated by Northern Democrats to be fully trusted with the protection of slavery.

Here, then, was the second legitimacy crisis: the incoming President was understood by half the country to be directly opposed to following the Constitution, the Supreme Court, or the rule of law in general.

To put yourself in their shoes, imagine if Donald Trump announced as part of his campaign platform that he would rescind DACA on his first day in office, deploy the military to start deporting DREAMers immediately without due process, and that he would give the finger to any court that tried to stop him? Alternately, imagine if Joe Biden announced he no longer recognized the Supreme Court’s gun-rights ruling in Bruen and that he would henceforward disregard the Second Amendment? How would you react? You might ask yourself whether an incoming President who openly vows to tear up the Constitution is a legitimate President whose authority must be recognized or obeyed. The South asked the same question, and decided the answer was “no.” They declined to recognize Abraham Lincoln as a legitimate President of the United States.

Facing what it understood to be an existential threat, from a North that trampled the rule of law as it pleased, the South declared the Constitution in abeyance. This was a key legal justification for the third and final legitimacy crisis: secession.

This was clear in many speeches given by Democrats at the time, but I think Sen. Robert Toombs of Georgia gave an especially clear statement of the Confederate position in his speech of 7 January 1861:

The success of the Abolitionists and their allies, under the name of the Republican Party, has produced its logical results already. They have for long years been sowing dragons' teeth, and have finally got a crop of armed men. The Union, sir, is dissolved. […]

Senators, my countrymen have demanded no new Government; they have demanded no new Constitution. Look to their records at home and here from the beginning of this national strife until its consummation in the disruption of the Empire, and they have not demanded a single thing except that you shall abide by the Constitution of the United States; that constitutional rights shall be respected, and that justice shall be done. Sirs, they have stood by your Constitution; they have stood by all its requirements; they have performed all of its duties unselfishly, uncalculatingly, disinterestedly, until a party sprang up in this country which endangered their social system—a party which they arraign, and which they charge before the American people and all mankind, with having made proclamation of outlawry against four thousand millions of their property in the Territories of the United States; with having put them under the ban of the Empire in all the States in which their institutions exist, outside of the protection of Federal laws; with having aided and abetted insurrection from within and invasion from without, with the view of subverting those institutions, and desolating their homes and their firesides. For these causes they have taken up arms. I shall proceed to vindicate the justice of their demands, the patriotism of their conduct. I will show the injustice which they suffer and the rightfulness of their resistance.

So the first two legitimacy crises led to secession. Secession was the Big One. The Southern states claimed that they were no longer part of the United States and no longer subject to its laws. They claimed that Congress no longer had the authority to collect import duties in their states, nor deliver the mails, nor remain in possession of federal property within their newly “sovereign” territory—property like forts. The North claimed that secession was invalid, and President Lincoln, in his inaugural address, vowed to continue collecting taxes, delivering mail, and manning U.S. forts with U.S. troops.¹¹

There are now two competing governments claiming similar authority over identical territory. You do not need a single person, in either North or South, to be “eager for a fight,” so long as both sides are sufficiently committed to their legal position. At a certain point, a federal customs official would ask a Southern cargo shipper to pay his import tariff. The cargo shipper would refuse. The customs official would have to arrest him. The shipper would cry for help from local police forces, who would consider the arrest illegal. The customs official would call in his own forces to defend federal law. The state militia gets called up in response. Federal troops follow, again in response. Very soon, the attempt by both sides to follow what they recognize to be the law leads to very large groups of men with guns pointed at each other, with no legal resolution possible. Either one side will back down and give the other side what it wants, or what could not be settled in a court of law will be settled on the field of battle.

As it happened, the Civil War didn’t start because of the dispute over import duties. It started because of the dispute over federal property. The so-called Confederate government asserted a right to all forts in its sovereign territory, and attempted to take possession. The federal government did not recognize that right, and refused. Either one side had to back down, or the battlefield would decide. As Lincoln said in his second inaugural:

On the occasion corresponding to this four years ago, all thoughts were anxiously directed to an impending civil war. All dreaded it—all sought to avert it. …Both parties deprecated war; but one of them would make war rather than let the nation survive; and the other would accept war rather than let it perish. And the war came.

Yet the war’s arrival took longer than you might have expected, because, as Lincoln said, North and South did not want war. As I wrote in the Second Civil War novella:

You might think, “That’s it, things are going to hit the fan now,” but governments are remarkably resilient, even in their terminal stages. In this, they are aided by the population’s lack of imagination. We cannot imagine what will come when the government stops, so it doesn’t. We don’t let it.

South Carolina seceded on December 20, 1860, and South Carolina demanded federal troops turn over Fort Sumter to the “legitimate” state government in January 1861… yet Lincoln didn’t become president until March 4th, 1861, the Confederacy wasn’t ratified until March 13th, 1861, and open war didn’t break out until April 12th, 1861.

Both sides performed a ballet in which each tried to assert its rights and privileges without coming into direct conflict with the opposition. Major Anderson of the Union garrison in Charleston had already given up Fort Moultrie to the Confederacy way back on December 26th, retreating to Fort Sumter. In January, the Union sent a civilian ship to resupply Fort Sumter (not a military ship), but the rebels fired on it until it retreated. Union forces, still hoping for a peaceful solution, decided not to retaliate. In March, the Confederacy attempted to buy Fort Sumter, but Lincoln refused to recognize their government, so negotiations could not begin. Several outrages occurred on the frontier against the public officials or property of the two governments, which both the U.S. and Confederate governments decided to ignore for the sake of preserving peace. Lincoln attempted to resupply Fort Sumter with food only (no weapons or ammo), but the Confederacy refused to allow it. Lincoln sent the supply ship anyway.

Only then—and only after much debate—and even then it was kinda Secretary of State William Seward’s fault—did the Confederate government decide to bombard Fort Sumter. And so the war came—but it was nearly five months into the legitimacy crisis, and six weeks after President Lincoln took power. The music had stopped in December, but the ballet of power went on until April.

Fear, more than anger, helped make both sides stubborn. The North feared—correctly—that the South, if allowed to secede, would soon launch a war to seize all U.S. territory south of the Missouri Compromise line, plus Cuba and maybe Mexico. The South feared—correctly—that, if they submitted, the North would discard the South’s interpretation of the Constitution (which shielded slavery) and replace it with a new model of the Constitution that would, like an anaconda, squeeze tighter and tighter around the South until slavery was crushed out of existence… and, they feared, the South along with it.

And the war came.

Contra Douthat, there were relatively few people “eager” for war before Sumter. After Sumter, however, there were floods of them. The legitimacy crisis created them. Eagerness for battle was not a freestanding precondition of civil war, but a consequence of the engines that drive it: partisan hatred and legitimacy crisis.

The other “preconditions” Douthat mentions do have some relevance. Strong economic and social incentives against war did delay its outbreak. So did a (relative) lack of polarization, particularly in the crucial border states (Virginia, Kentucky, Missouri, Maryland, arguably Tennessee). Yet the unbending logic of legitimacy crisis caused war to break out anyway. Once that happened, the popular excitement that followed swept aside all remaining elite hesitation, completed the process of polarization, and sent dissenters on both sides of the border running for friendlier climes. (Thus was West Virginia born.) Douthat’s preconditions did not create the war; the war created Douthat’s preconditions.

Our Next Civil War

The thing we should be looking out for, then, is not the thing Douthat suggests we look out for:

some kind of rupture, some world-shaking external or internal force, as the necessary precondition.

The hermeneutic of rupture is the wrong lens here. Instead, we should be looking out for legitimacy crisis, which is better seen through the hermeneutic of continuity.

Legitimacy crisis occurs when the tiny fissures in a political system grow and grow under tectonic political pressures until cracks start to open up. The system may hold itself together after one crack, or six, or twenty, but, if the pressure continues to build, eventually, it falls apart, and suddenly society no longer knows who has the authority to make and enforce laws. In short, legitimacy crisis is one possible end state of a decadent society.

This is a good time to study legitimacy crisis, because we seem to be determined to drive our nation into one as fast as we humanly can. Our institutions—political, academic, scientific, administrative—currently all act uniformly for short-term self-interest. We launch relentless attacks on the enemy, reckless of the obvious long-term consequences. Everyone plays hardball, always. We hate each other more and more; we trust each other less and less. Our culture used to run smoothly on a combination of written rules and unwritten norms. Now we discard The Norms like socks with holes in, and much of our political culture holds people who still follow The Norms in contempt.

Think of intensifying partisan hatred as a barrel of gasoline that has sprung a slow, slow leak in a very large room. Every time we thwart a Norm, or throw a hardball, we’re tossing a lit match into that room. Most of them will do nothing. The odds of any single one of them igniting the room are very low.

But when one of them explodes, we would be very silly if we thought there was something special about that particular match. Whatever kicks off our next war will seem unlikely, even absurd… until the moment it becomes inevitable.

The 2020 election crisis was a gift from God. We threw a match into the room and it almost ignited—but it didn’t. In my view, the main reason it didn’t ignite was that Joe Biden won by just enough to convince a decisive share of independents and anti-Biden conservatives like me that he really did win.¹² If 2020 had been just a titch closer, we could have had genuine doubts about certifying the results on January 6, and there could have been a true legitimacy crisis. (In my Civil War novella, that’s pretty much what happened.) The 2020 crisis was a warning: stop throwing matches! This room is slowly filling with gasoline! You’re gonna start a fire!

Four years later, we’re throwing them faster than ever.

That is why, even though I cannot see the exact path we will take to civil war, I nevertheless think we have already created the necessary preconditions. Although fate protects fools, little children, and the United States of America, I have come to think that only dumb luck—or God—can now extricate us from this minefield.

Civil War (2024) might have helped, but failed.

---

Verdict on Civil War (2024): 1 star out of 5. No real regrets about seeing it, passably entertaining, but a waste of time.

Who should see it? Smug journos, diehard oikophobes, fans of the genre (e.g. Road to Morocco, Pee Wee’s Big Adventure), people who’ve written 35,000 words about the possibility of civil war.

Verdict on Ross Douthat’s Reviews of Civil War (2024): 2.5 stars out of 5. Some crucial misfires, but an interesting and sometimes vivid argument even when derailed. (Loved his childhood fantasy war. We all had those.)

Who should read it? Anyone who thinks hard about polarization, people concerned about the rising interest in political violence among Americans, anyone trying to decide whether to go see Civil War.

Verdict on Civil War (1861-1865): 4 out of 5 stars. “If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through his appointed time, he now wills to remove, and that he gives to both North and South this terrible war, as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to him?”

Who should study it? Those who do not wish to repeat it.

---

NEXT TIME: I have already written an eclectic Short Reviews article for the paylist, lest they think they’ve been cheated by my posting this pseudo-review to the public. If you want my further (and considerably more deranged) ideas about the Civil War movie, you’ll have to subscribe (or use your free trial). I also have a Worthy Reads finished and sitting in the hopper, also for the paylist.

The article I’m working on right now is a follow-up to Towards an Unelected President. The comments thread on that post was so active and wonderful that I felt I just needed to do a new post responding to all your ideas in a more centralized way. Hoooooopefully I can get that done and dusted in the next two weeks.

Then I’m thinking it might be time to do a fresh article on the state of the pro-life movement, two years after Dobbs (because I have some Thoughts), or, finally, the next installment of Letters to a Growing Catholic, since my kids aren’t getting any younger.

1. Several tedious #Resistance tropes seep through. “Oh, the putatively fascist president dissolved the FBI? Remind you of anyone, hmmmm?” Still, the film mostly succeeds here.

2. I have no idea what the Civil War characters’ names were, even though the movie went out of its way to remind me.

Also, I have been informed in the editing process that Bluey is actually 7 minutes long, which is even funnier.

3. The over/under is 60 minutes after the movie starts. For reference, Obi-Wan Kenobi dies 92 minutes into Star Wars, but Star Wars is a longer movie. The equivalent point in Civil War, in terms of percentage of runtime, is the 80-minute mark. Happy betting!

4. Of course, that may also have something to do with the fact that Gettysburg’s writer-director, Ron Maxwell, seems to be a bit of a Lost Causer… or, at least, he strongly emphasizes what the two sides have in common rather than what divides them.

5. It’s not really a De Civitate legal post if I don’t link to Michael Stokes Paulsen at least once! Read Paulsen’s (layman-friendly) article at First Things showing the connections between Dredd Scott and Roe (among other things).

Michael Stokes Paulsen is perhaps best known today as the man who put the “conservative case for disqualifying Donald Trump for insurrection” on the map, legally speaking. For that reason, I have quoted him constantly in my hundreds of thousands of words on the Trump disqualification suits. But Paulsen has done a lot of other scholarship around Civil War legal controversies, including Dred Scott, and he has a keen eye for connecting those controversies to the present day. (Which is, of course, how he stumbled into the disqualification theory in the first place.)

6. If the Civil War had held off for a few more months, Taney would have had an opportunity: Lemmon v. New York, 20 N.Y. 562, had been moving through the court system since 1852. It was about whether a state could legally emancipate slaves without the consent of their masters. In 1860, New York’s highest court made its final decision, and Virginia appealed to the U.S. Supreme Court… but then Virginia seceded, and the case was dropped. Between that and the Corwin Amendment, we had a real Sliding Doors moment in early 1861. Had civil war been averted—or even if it had ended quickly with decisive Union victory at Bull Run—it’s easy to imagine an alternate history where slavery never ended and New England eventually felt compelled to rebel instead.

7. To get yourself in the mindset, compare pro-life efforts to nullify Roe v. Wade through indirect state-level restrictions, like imposing “ambulatory surgical center” regulations on abortion clinics, or requiring a twenty-four hour waiting period before an abortion. These laws were legally and medically justifiable on the basis of protecting abortion-minded women… but one obvious additional motive was to protect the unborn human beings the Supreme Court had declared non-persons.

Do you remember how much those laws infuriated abortion-rights advocates pre-Dobbs? That’s approximately how slaveowners felt about personal liberty laws, abolitionist-organized jury nullification, and other devices. Abolitionists justified each measure in legally-acceptable terms. For example, they would tell judges that they were trying to protect free Blacks from being kidnapped into slavery. However, their obvious primary motive was the protection of runaway slaves, whom the Constitution forbade them to protect.

8. Of course, the Fugitive Slave Clause was grossly immoral, but this only gave us another layer of legitimacy crisis: the North recognized the moral legitimacy of (largely Christian) anti-slavery arguments, whereas the South recognized the moral legitimacy of (largely Christian) pro-slavery arguments. They stopped recognizing the same moral law long before they stopped recognizing the same civil law.

For more on this dimension of the legitimacy crisis, see Mark A. Noll’s The Civil War as a Theological Crisis.

9. One of the great ironies of modern times is that, even though Lincoln won the war, and is beloved by all, we collectively rejected his actual theory of the law at some point along the way. In the Lincoln-Douglas debates, Lincoln articulately laid out his theory that, under some circumstances, the executive and legislative branches of the United States can and must rely on their own good-faith interpretation of the Constitution, rather than deferring to the Supreme Court’s judgment. It was this theory of the law, ultimately, that justified the North’s reaction to Dred Scott and its rejection of secession.

Douglas took the opposite view: he saw the Supreme Court as the supreme interpreter of the Constitution, and believed everyone had to accept their rulings, all the time, even the President and Congress, even if the rulings were wrong. That obviously included the Dred Scott ruling. Today, everyone believes this! So, under today’s doctrine, Lincoln was wrong and the Confederacy had a real grievance against the Union!

Today’s doctrine is, of course, wrong. Lincoln was correct throughout. Modern judicial supremacy doctrine is a perversion of the Constitution. The South was wrong to obey Dred Scott, and wrong to demand anyone else obey it, because Dred Scott was wrong and could bind only the parties at bar.

But that’s a whole ‘nother post.

10. Of course, the Southerners excluded “Negroes” from their idea of a majority.

11. Legally speaking, Lincoln was correct. However, as I said in a prior footnote, that’s a whole ‘nother post.

12. The 2020 election was decided by about 65,000 votes in three states, or about 0.04% of the votes cast. In my civil war novella, the election was decided by 3,407 votes, or 0.002% of the total, which was juuuust close enough to kick things off. (Meanwhile, the 2000 presidential election was decided by 0.0005% of the votes cast.)