How to Finally Win the Civil War

The South has never believed in democracy. So it’s no wonder the GOP doesn’t. But the battle for democracy must be won.

By Jonathan Zasloff

Tagged African AmericansAmerican Civil WarHistoryRacismThe South

When Donald Trump visited Maine in June 2020, his supporters greeted him with a symbol unfamiliar in the Pine Tree State: Confederate flags. Maine is hardly free from racism, and like many northern states, had a KKK influence in the 1920s. But the Confederacy? Maine contributed the highest proportion of its population to the Union effort of any state, and was a hotbed of abolitionism. Lincoln’s first vice president, Hannibal Hamlin, came from there, and after the war, Mainers waved the bloody shirt with abandon, with several leading the Reconstruction-era GOP.

What gives?

Answering this question requires a deeper dive into American history and politics. In 2020, the issue of the Confederacy—be it on military bases, or on portraits in the halls of Congress, or connected to ubiquitous statues and road names throughout the nation—reverberated in policy debates. Donald Trump has taken a strong stand defending the Confederacy, to the point that The Washington Post’s Eugene Robinson declared that this the year when the nation must finally win the Civil War by taking the symbols down.

But it is much more than a matter of symbolism. In a non-trivial way, the Confederacy triumphed in the Civil War by establishing a particularly Southern pattern in national politics. This pattern rejects the fundamental tenet of any democracy: namely, multi-party competition, with various rules and informal norms designed to ensure a modicum of fairness. It began in the Democratic Party, but subsequently migrated to the Republican Party, as segregationists did, in the wake of the civil rights movement. The GOP has embraced this pattern vigorously, and it guides its actions on the federal and state level. Make no mistake: The Republican Party wishes to destroy democracy. It seeks a form of one-party state: many can compete, but only one is allowed to win.

Thus, finally and fully winning the Civil War does not mean simply taking down statues, or renaming buildings, or changing state flags. It means deepening democracy. The Civil War was originally a war for the Union, yet eventually became, almost in spite of itself, a war for abolition. But it was also, at its core, a war to determine if a government “of the people, by the people, and for the people” would endure. That war continues, and if we are to win it, we must focus on the underlying politics more than the symbols.

I. It Was Always About Race

Southern politics rejected multi-party competition from the earliest days of the Republic. America’s “First Party System” pitted the Federalists against the Jeffersonians, named the Democratic-Republicans. But Southern electors rejected the premise of competition entirely. After George Washington’s departure from the Presidency, the Federalist Party failed to win a single Southern state in a Presidential election, even when one of their own—South Carolina’s Charles Coatesworth Pinckney—was the party’s nominee. Starting in 1796, when the First Party System began, Federalists never—not once—comprised the majority of any House of Representatives state delegation south of the Potomac.

Unsurprisingly, race played the major role from the beginning even from before it. At the Virginia convention to ratify the Constitution, one reporter recounted, anti-Federalist Patrick Henry painted “in the most vivid colors the dangers likely to result to the black population from the unlimited power the general government, wielded by men with little or no interest in that species of property, and filled his audience with fear.” Then Henry exclaimed, “They’ll free your ___,” using the n-word. Subtle he was not. Even when the argument was less direct, its point was obvious. As Berkeley’s Robin Einhorn has noted:

In drafting tax legislation, Henry argued, northerners would burden the master class with rates high enough to “compel the Southern States to liberate their negroes.” Prohibitive slave taxes presented “a picture so horrid, so wretched, so dreadful, that I need no longer dwell upon it”; yet dwell on it he did. Everyday political decisions would give northerners endless opportunities to tamper with slavery.

Only a few state officials—including governors—could be trusted. A stronger central government such as the Federalists wanted wasn’t just bad policy: It was tyranny. And thus, the South could give power to only one party.

Eventually, the Federalist Party collapsed in the wake of the War of 1812—an ironic development since the nation suffered so badly under Jeffersonian mismanagement. But when the Second Party System arose in the 1830s, pitting Jacksonian Democrats against Whigs, the same one-party pattern arose. Although the Whigs were somewhat more successful than the Federalists had been, the Democratic Party dominated the South, behind figures like Andrew Jackson and John C. Calhoun. The Whigs were more-or-less the permanent minority. Like the Federalists, the Whigs favored a stronger national government and internal improvements to generate commerce. That made them anathema. A solid one-party South was necessary to prevent “tyranny” —which is to say, any threat to chattel slavery, no matter how distant. Southern Democrats established the “gag rule” in the House prohibiting anti-slavery petitions—an explicitly unconstitutional and anti-democratic provision. Southern states prohibited the distribution of abolitionist literature on the same grounds: The freedom to hold others in bondage meant that actual freedom had to be done away with.

Whigs could only attract any Southern support by nominating a Southerner for President. It tapped pro-slavery Virginian William Henry Harrison in 1840, which blew up in its face when Harrison died less than a month into office. Harrison’s vice president, John Tyler, another Virginian, was so disliked by the congressional Whigs that they read him out of the party after a dispute over a banking bill. In 1848, the party practically had to beg pro-slavery Virginian plantation owner General Zachary Taylor to accept its nomination, and as soon as he did so, he distanced himself as much as possible from it.

The historian and political theorist Richard Hildreth recognized that the South’s antipathy to democracy—no matter the name of its dominant political party—drove its form of politics. He entitled his classic 1840 antislavery treatise Despotism in America, and he argued that the slave system meant war by other means. The South was a slave society, in which the conflict between master and slave defined all social relations. Thus, Hildreth observed, slavery’s permanent war footing also required a severe reduction in liberty, such that critical political and moral issues simply could not be discussed, making the minor party competition essentially cosmetic.

Then the war came. As a political matter, the secession crisis was driven by the South’s basic refusal to accept the results of an election that it lost—even when it had established biased rules of the game such as the three-fifths rule. The rules were set by the Constitution, the parties agreed to play by them—and then when the South lost, it decided literally to take its people and go home. This is why Lincoln at Gettysburg could say that the “great civil war” tested whether republican government could “long endure.” Political theorists had long wondered whether it could, because it would constantly split into different factions and then into different nations. After all of the theorizing about how America was different, it turned out that it was, in one sense, not so different after all: It stayed together only through the application of four years of massive and devastating violence.

II. The Golden Age of the One-Party South

And even then, the South rose again, mainly because the North let it. Reconstruction represented an effort to empower the freedmen, and that meant creating a two-party system. And for a time, it flourished, as the Republican Party in the South came to power on the strength of Black votes, and even sent African Americans to the United States Senate. And that is precisely what the “Redeemers,” who assumed power in the South after Reconstruction ended in the 1870s, quickly moved to destroy. Without the protection of federal troops, southern Blacks not only faced a new reign of state-sponsored terror through paramilitaries, but also an almost complete collapse of political power. Within less than decade, hundreds of Black officeholders, all from the GOP, had lost their jobs and often their lives. Only a few isolated Southern pockets, such as Virginia under the populist, multiracial, Readjuster Movement, and the “Black Second” congressional district of North Carolina, still had any African Americans in elective office.

And even this was too much for the Jim Crow political system. The 1890s not only saw a dramatic increase in lynching and formal segregation, but also a wave of laws disenfranchising both Blacks and poor whites, destroying the last vestiges of the Republican Party in the South. When Populist Republican Jeter Pritchard left the Senate on March 3, 1903, the chamber did not see another elected GOP member from the South until John Tower of Texas entered in 1961.

Thus was born, in V.O. Key’s oft-quoted phrase, “the South’s One-Party System.” It was hardly placid—fights with the Democratic Party could be vicious, and Will Rogers made a famous joke about it—but it was highly controlled, and once the party decided matters, the election was over. Race, of course, lay at the bottom of the whole edifice. As Key observed, “the raising of a fearful specter of Negro rule and the ruthless application of social pressures against those who treasonably fused with the Republicans under Populist leadership put down for decades the threat of the revival of two-party competition.” When North Carolinian Josephus Daniels, who led the Tar Heel State’s disenfranchisement, said that he wanted to take the “Negro question out of politics,” he meant, in reality, that he was taking the Negro out of politics, and that required one-party rule.

Finally and fully winning the Civil War does not mean simply taking down statues, or renaming buildings. It means deepening democracy.

So it was until the civil rights movement. At first, the postwar push led only to small deviations from the one-party South—Strom Thurmond and other Southerners walked out of the 1948 Democratic National Convention over civil rights, and Dwight D. Eisenhower carried four Southern states in 1952. But Ike repeated and expanded the feat four years later, and then Tower was elected to the Senate in 1960. In the wake of LBJ’s signing of the 1964 Civil Rights Act, Barry Goldwater might have been blown out around the nation, but of the six states he carried, five—Louisiana, Mississippi, Alabama, Georgia, and South Carolina —were from the formerly “Solid South.”

III. Trading Places

Thurmond switched parties that year. Many of the founders of the modern Southern Republican Party began their careers as Democrats. Jesse Helms was the most prominent, but there were other significant figures as well. In Mississippi, former Democrat Thad Cochran became the first Republican sent to the U.S. Senate since Reconstruction, replacing arch-bigot James O. Eastland. As soon as the Magnolia State’s other Dixiecrat Senator, John Stennis, retired, he was replaced by Republican, and former Democrat, Trent Lott. When Tower retired in 1984, former Democrat turned Republican Phil Gramm was elected to replace him. Importantly, all these men came from the one-party tradition; the party changed names, but the hostility to two-party politics remained.

For a while, it seemed as if the South would put aside its one-party stance, as Democrats and Republicans traded places in several states throughout the last quarter of the century. In retrospect, however, this appears to have been simply a transition from one type of one-party system to another Democrats could win in the 1980s and 1990s from time to time with a coalition of African Americans and legacy Democrats still voting by habit. As they died off or finally switched parties, or as incumbents retired, the one-party South returned, with the important exception of majority-minority districts created to satisfy the Voting Rights Act. For a while, the Democrats tried the old Whig technique of running a Southerner for President—Jimmy Carter and Bill Clinton were their only successes of this era—but like the Whigs, the success was sporadic and short-lived in historical terms. By 2000, the takeover of most Southern jurisdictions was complete at the presidential level, with George W. Bush taking every state of the former Confederacy, and Tennessean Al Gore losing even his home state.

Similarly, although many factors drove the historic 1994 midterm election that gave Republicans the House majority for the first time in four decades, among the most important was retirements of southern Democratic incumbents and their replacement by their natural successors—right-wing Republicans. In Mississippi, for example, Jamie Whitten retired after more than a half-century in the House, and was succeeded by Roger Wicker, currently a GOP Senator. In the Florida panhandle, Dixiecrat Earl Hutto retired and was succeeded by a previously unknown Pensacola lawyer named Joe Scarborough. For the first time since Reconstruction, the majority of the South’s House delegation was Republican.

Southerners drove the new majority. Newt Gingrich came from Georgia; Majority Leader Dick Armey was a Texan. Majority Whip Tom DeLay also hailed from the Lone Star State, and although he was not a shoo-in for the job, his closest competitor was Floridian Bill McCollum. After Bob Dole resigned as Senate Majority Leader to run for President two years later, he was succeeded by Mississippi’s Lott. When Lott was forced to resign after comments he made seemingly supporting Thurmond’s 1948 Presidential campaign, his replacement was Tennessee’s Bill Frist.

Southern dominance led to a politics squarely in the Southern tradition. For Gingrich, Democrats were not simply opponents: They were enemies of the nation and civilization. McKay Coppins noted in The Atlantic that “one memo, titled ‘Language: A Key Mechanism of Control’ included a list of recommended words to use in describing Democrats: sick, pathetic, lie, anti-flag, traitors, radical, corrupt.” When Susan Smith confessed to drowning her two children in a South Carolina lake in 1994–after initially concocting a story that she had been carjacked by an African American—Gingrich was quick to cynically blame the Democrats: “I think that the mother killing the two children in South Carolina vividly reminds every American how sick the society is getting and how much we need to change things. . . . The only way to change is to vote Republican.”

But while Gingrich perfected the language of demonization, his strategy had a long history in the South. Southern politicians had long demonized their opponents—be they the shell of a Southern Republican Party, northerners, Blacks, Jews, or anyone else—as not merely opponents, but rather threats to “our culture and civilization,” in the words of Mississippi’s Eastland. These attacks were explicitly sexual, and while Gingrich would not be so direct, his allegations of Democrats being “sick,” “twisted,” “corrupt,” etc. echoed the likes of Mississippi Senator James Vardaman, for whom President Theodore Roosevelt was not an opponent but a “little, mean, coon-flavored miscegenationist.” The point was not to defeat, but to delegitimize.

IV. Moving Into Lockdown

All parties and politicians want to win, of course. Attempting to become the dominant force in state or national politics hardly suggests a rejection of democratic politics. But the modern GOP, inheriting the Southern tradition, has also inherited a dangerous tradition of adopting rules that tilt the playing field against the opposition. In doing so, they were recalling Tillman’s famous statement from the 1895 South Carolina Constitutional Convention that “overcoming a…majority by honest methods was a mathematical impossibility,” so “fraud” was the only way to “recover our liberty.” When it appeared that Democrats would make a comeback, the response of Republicans was political Calvinball; changing the rules in the middle of the game.

One might place the beginning of the modern process of democratic rejectionism in 2000, when the Supreme Court in Bush v. Gore decided simply to suppress the counting of votes. It then grew through the first decade of the twenty-first century, as the George W. Bush Administration actively attempted to increase prosecutions for in-person voter fraud—a basically non-existent crime. When Republican U.S. attorneys refused to prosecute some of these cases, Attorney General Alberto Gonzales summarily fired them without explanation. Once again, the South led the way: When in 2002 the GOP achieved a trifecta in Texas, DeLay immediately pushed through an unprecedented mid-decade redistricting; his egregious partisan gerrymandering wiped out several Democratic representatives and entrenched the GOP in power even as the Lone Star State trended purple.

But the process metastasized after the GOP sweep in the 2010 midterms. Mandated redistricting after the Census allowed Republicans to draw the maps, and they did so with a vengeance, using new technology to create the most partisan maps in history. They were also not shy: When North Carolina GOP Representative David Lewis was asked why, in a state close to evenly split between Democrats and Republicans, he drew congressional maps that generated a 10-3 GOP advantage, his reply was simple: “because I don’t think it’s possible to draw an 11-2 map.” The entire point was to lock down party competition, in the best Southern tradition.

Southern dominance led to a politics squarely in the Southern tradition. For Newt Gingrich, Democrats were not simply opponents: They were enemies of the nation.

What became clear after 2010, however, was that Southern politics had also come North, as the Southern-dominated GOP built power there. The most developed “Southernization” of Northern politics occurred in Wisconsin. New GOP legislative majorities in 2011 so grossly gerrymandered legislative districts there that, in the next year’s elections, assembly Republicans got fewer votes than Democrats yet achieved a super-majority in the lower house. The GOP also enacted the strictest voter ID in the law in the nation, disenfranchising thousands of mostly lower-income people of color and contributing to Donald Trump’s narrow victory there.
They didn’t stop there: When, in 2018, Democrat Tony Evers defeated Scott Walker to win the governorship, the state legislature immediately met in a special session to strip the governorship of many of its powers—a bill that lame duck Walker happily signed. Now that Evers will sit in the governor’s mansion to block the gerrymandered legislature’s efforts at further gerrymandering, legislative leaders are discussing redistricting through a joint resolution, which does not require a gubernatorial signature. This would violate the state constitution, but since Republican voter suppression has disenfranchised so many voters, the (elected) state Supreme Court has a narrow GOP majority and could very well approve any plan.

Northerners also empowered Southerners to more deeply entrench their anti-democratic preferences. In Shelby County v. Holder, the Court overturned the key provisions of the Voting Rights Act requiring the Department of Justice to “preclear” voting rules changes in states with histories of suppression. Four members of the 5-4 majority came from Northern states, and the mostly Southern jurisdictions now freed of civil rights enforcement suppressed with alacrity. In North Carolina, within 48 hours of the decision, the Fourth Circuit famously wrote, GOP legislators wrote rules to disenfranchise African Americans “with almost surgical precision.” Republican legislators and governors throughout the South closed nearly 1,000 polling places in minority neighborhoods, and restricting early voting—all with the Supreme Court’s permission.
The overall message is clear, and very Southern, whether in Wisconsin, either of the Carolinas, Texas, or from the Supreme Court: The opposition party simply has no right to win an election even if the majority of the voters approve. It is a repeat of the South’s position in 1860; whether we like it or not, the nation currently finds itself in the midst of a Cold Civil War.

V. What Is To Be Done? Fighting the Cold Civil War

Because the modern Republican Party essentially embodies long-running Southern political patterns and replicates the Jim Crow anti-democratic ideology, combatting it requires the vigorous enactment of pro-democracy measures. American politics must be de-Southernized: which concerns less symbols such as Confederate flags, statutes, and names of buildings, and concerns more entrenching democracy throughout American political institutions.

Popular media and scholarly sources have repeatedly discussed the measures for such democratic entrenchment. The goal is, quite simply, free and fair elections, such that a majority of voters choose their political leaders. Former President Barack Obama alluded to many of these measures in his now-famous eulogy for the late Representative John R. Lewis, for whom voting rights was the cause of his life. Obama first mentioned the John R. Lewis Voting Rights Act, which would overturn the Court’s ruling in Shelby County and allow for preclearance. But, the former President said, once that is done:

[W]e should keep marching to make it even better.

By making sure every American is automatically registered to vote, including former inmates who’ve earned their second chance.

By adding polling places, and expanding early voting, and making Election Day a national holiday, so if you are someone who is working in a factory, or you are a single mom who has got to go to her job and doesn’t get time off, you can still cast your ballot.

By guaranteeing that every American citizen has equal representation in our government, including the American citizens who live in Washington, D.C. and in Puerto Rico. They are Americans.

By ending some of the partisan gerrymandering—so that all voters have the power to choose their politicians, not the other way around.

And if all this takes eliminating the filibuster—another Jim Crow relic—in order to secure the God-given rights of every American, then that’s what we should do.

Obama’s speech needs unpacking and extension. His reference to new states has merit in and of itself, but the problem is broader than that. The United States Senate is undemocratic by design, yet in the twenty-first century, as metropolitan regions grow and rural areas decline in population, it has reached untenable levels. In 1790, Virginia, the largest state, was 12.65 times the size of Delaware, the smallest; currently, California, the largest state, is sixty-eight times the size of Wyoming, the smallest. Even if the Democrats lose both Georgia Senate runoffs, Democratic senators will represent 20 million more Americans than Republicans; if they win and split the Senate evenly, they will represent 40 million more. The problem has already crept up on us: Democrats have won a majority of votes for Senate in each of the last two election cycles, often by very large percentages, and very likely will do the same in 2020 once all the data comes in, yet the GOP has maintained a majority throughout the entire time.

Since a constitutional amendment obviously is impossible—it would require the approval of those whose power would be diminished—the next best step, and as Obama mentioned, a completely justified one, is the addition of new states. DC and Puerto Rico are obvious choices, as is the Virgin Islands. California might also consider splitting itself into two, a choice that would find popularity in the Bay Area. The point is to make the Senate actually roughly representative of the population as a whole.

President Obama’s other recommendations are straightforward, but a particularly crucial one. The democracy agenda requires expanding the Supreme Court, since its current makeup is so hostile to it. None of the above-mentioned measures is safe as long as a radical right-wing majority lasts on the Supreme Court. John Roberts’s centrist tilt over the last term should not fool anyone. If there is one lodestar in Roberts’s jurisprudential firmament, it is restricting the scope and power of the franchise. The Chief Justice wrote the Shelby County decision, and as Jeffery Toobin of The New Yorker has reported, Roberts had been working to eviscerate the Voting Rights Act since he was a young lawyer at the Department of Justice in the first Reagan Administration. He authored the opinion holding, beyond all reason, that extreme partisan gerrymandering was non-justiciable (that is, beyond the purview of the courts). We can fully expect that many of these measures—including even DC statehood—will be struck down by the high court using the flimsiest of arguments. The death of Justice Ruth Bader Ginsburg and the ramming-through of Amy Coney Barrett only makes court expansion—best described as “court unpacking”—even more urgent.

We cannot overlook the fairly massive implications of such a move. The next time Republicans gain the ability to do so, they will also expand the size of the Court, perhaps leading to a tit-for-tat. But there is no other way. Risking the future of American democracy on five men who have demonstrated their hostility to it is folly.

Yet none of these measures will be enacted in the short term. The problem is obvious: in the wake of the 2020 election, all such measures are practically stillborn. In a Republican Senate that figures to block most of President Biden’s executive branch appointments, enacting deep structural reforms is sheer fantasy.

Thus, the Cold Civil War has entered into perhaps an extended phase of grinding political trench warfare. Joe Biden won the greatest percentage of the popular vote by any Presidential challenger since FDR in 1932, and the Democrats maintained control of the House. But this cannot obscure failures in Senate campaigns, and most ominously, continued GOP control of statehouses as redistricting begins – all combined with a Supreme Court that will consistently put its thumb on the scale of voting restrictions. The Atlantic’s Ronald Brownstein is surely correct to dub 2020 the “Antietam Election,” in reference to the Civil War battle where Northern forces stopped the Southern invasion but generated only ongoing grinding stalemate.

Confronted with the inevitability of political trench warfare, pro-democracy forces have no other choice but to fight it with the weapons they have. The struggle will demand funding for grassroots organizing and more sophisticated digital strategies, as well as a consistent effort to maintain productive dialogue between the Democratic Party’s progressive and moderate wings. In the same way that the Cold War demanded a heightened and constant level of military preparedness, the Cold Civil War requires a heightened and constant level of political mobilization. Or to continue the Civil War analogy, it requires the sort of sustained political commitment that the North abandoned during Reconstruction. Maintaining a long-term struggle necessitates a clear understanding of the goal at hand: here, it is nothing less than achieving democracy.


To underline the obvious: While these measures help entrench democracy with a small “d,” they hardly entrench the Democratic Party. Entrenching a level playing field is hardly the same thing as entrenching minority rule. The Republican Party currently does not compete for low-income, Black, and minority voters because it has established itself as the party of white supremacy, nativism, and plutocracy. It need not do so. In fact, it has shown that by not saying the quiet parts out loud, it can often attract those voters: According to national exit polls, George W. Bush took between 40 and 44 percent of the Latino vote in 2004—even as he appointed right-wing judges and sponsored anti-gay state ballot initiatives.

The contemporary GOP, however, has fully rejected such an approach. The Southern tradition of rejecting party competition has now become its basic ideology. And that is why Donald Trump’s Maine supporters greeted him with the Stars and Bars: by rejecting democracy, the GOP base has embraced the Confederacy, no matter how far north they live. The South has risen again.

In 2009, Republicans repeatedly proclaimed Barack Obama to be a “tyrant” simply because he attempted to fulfill his campaign promises. Jon Stewart said in April of that year, “I think you might be confusing tyranny with losing.”

Yet that is the entire point: Equating tyranny with losing runs deep within the Southern tradition of American politics, despite the constant encomia to democracy. Less than a week after Election Day, a Republican state representative from Mississippi argued in response to Biden’s victory, his state should “succeed [sic] from the union and form our own country.” Meanwhile, Trump and most of the nation’s Republican leadership are assiduously cultivating the baseless myth that Trump was deprived of a second term because of “voter fraud” – a new Lost Cause for the twenty-first century mirroring Jefferson Davis’s assertion that the Confederacy lost because of Northern savagery and perfidy. It is not a temporary fever to be broken, as Obama proposed in 2012, or a return to normal, as President-Elect Biden has frequently suggested. It represents a deep pattern in our political culture, one that must be thoroughly expunged if America is ever to become a genuine democracy.

Read more about African AmericansAmerican Civil WarHistoryRacismThe South

Jonathan Zasloff is professor of law at UCLA School of Law. He received his PhD in American History from Harvard University and his rabbinical ordination from the Alliance for Jewish Renewal. His most recent book is Moving to Integration: The Past and Future of Fair Housing (Harvard University Press, 2018), with R. Sander and Y. Kucheva.

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