What if the South had won the Civil War? Hardly a new question, and it’s doubtless one of the most common counterfactual thought exercises in American history. It’s also already been recently asked—though not answered seriously—in the 2004 mockumentary, CSA: The Confederate States of America.
Nevertheless, HBO is turning to some of the folks who brought you Game of Thrones to develop a new series titled Confederate. The show imagines “an alternative timeline,” the network’s press release explained, “where the Southern states have successfully seceded from the Union, giving rise to a nation in which slavery remains legal and has evolved into a modern institution.” And that’s not all:
The story follows a broad swath of characters on both sides of the Mason-Dixon Demilitarized Zone — freedom fighters, slave hunters, politicians, abolitionists, journalists, the executives of a slave-holding conglomerate and the families of people in their thrall.
HBO has chosen a particularly infelicitous time to unveil this project. After all, in the wake of the bitterly contested 2016 presidential election in large part waged and won on racial resentment and xenophobia, feelings are still raw over Americans’ ideological and partisan divide. Donald Trump’s triumph is not an aberration but the culmination of 50 years of Republican politics. So while some have called on HBO to abandon the series, one Trump supporter joked “they’re afraid that maybe the Confederacy will be shown in a good light.”
Yet the biggest problem with the hypothetical question behind Confederate is that it’s not so hypothetical at all. By all indications the show, as Ta-Nehisi Coates explained, “takes as its premise an ugly truth that black Americans are forced to live every day.” In a very real sense, the North won the war, but the South won the peace. Southern “Redemption” swamped national Reconstruction as an ivory curtain of white supremacy, intimidation, and violence soon enveloped the states of the former Confederacy. Northern exhaustion, complicity in the Johnson White House, and the entrenchment of a racist, conservative Supreme Court undermined the clear meaning and intent of the 13th, 14th and 15th Amendments to the Constitution. In less than a generation, the institutionalization of segregation was complete.
As W.E.B. Dubois lamented, “The slave went free; stood a brief moment in the sun; then moved back again toward slavery.” It took 100 years after Lee’s surrender to Grant at Appomattox for the civil rights movement to begin the demolition of the edifice of Jim Crow and with it, make possible the liberation of all Americans for all time.
All of which is why a far more powerful question for HBO to explore might be this: What if the North had won the Civil War much faster—and more completely?
Imagine what might have been had 200,000 black troops been put in the field by the beginning of 1862. Try to conceive of the Lost Cause and its perpetual hagiography of Southern “heroes” if a sudden Union victory left the Confederacy with its political leaders and military commanders executed or imprisoned by 1863. There would be no monument at Stone Mountain, Georgia. A triumphant Abraham Lincoln serving his two full terms, unencumbered by the need to appease border states, might have produced an abolitionist Supreme Court majority which could have protected voting rights, prevented “separate but equal,” and placed the rights of the American people above those of corporations.
It’s not hard to construct this alternative history. Like the creators of Confederate, I suggest starting with a different outcome at the pivotal Civil War battle of Antietam in September 1862. But while Game of Thrones showrunners David Benioff and D.B. Weiss imagine a decisive Southern victory in Sharpsburg, Maryland, my story instead begins with the annihilation of Robert E. Lee’s Army of Northern Virginia that could have—and probably should have—been Antietam’s result.
Before proceeding, a small refresher on Antietam is in order. As you may recall, Confederate armies had humiliated larger, better-armed Union forces throughout 1861 and 1862. While April 1862 saw the U.S. Navy secure New Orleans and western forces under Gen. Ulysses S. Grant defeat the Confederates in the bloodbath at Shiloh, the Union was no closer to Richmond by that summer. In late June, Robert E. Lee beat back Gen. George McClellan in the Battle of the Seven Days, leading to the evacuation of his 125,000-man army—double Lee’s own—from the James Peninsula. Between August 28-30, Lee’s smaller force again drubbed the Army of the Potomac at the Second Battle of Bull Run, this time under the command of Union Gen. John Pope.
Those defeats left Abraham Lincoln in a dire predicament while giving CSA President Jefferson Davis hope for winning the war. Without Northern victories on the battlefield, Lincoln could not credibly unveil the Emancipation Proclamation he had presented to his cabinet in July 1862. Designed in part to win over English and French public opinion, the new Union war aim to free the slaves in areas held by the rebels would be meaningless if it couldn’t be realized by Northern force on the ground. Meanwhile, Gen. Lee argued in a September 3 letter to Davis, “The present seems to be the most propitious time since the commencement of the war for the Confederate Army to enter Maryland.” Prying slave-holding Maryland from the Union and threatening Washington could persuade France and England to support the Confederacy and ultimately leave Lincoln no alternative but to sue for peace.
Mercifully, that is not how Lee’s Maryland campaign unfolded. There was no groundswell of local backing for the Confederates. And on Sept. 17, 1862, along the banks of the Antietam Creek in Sharpsburg, Maryland, Lee’s advance was halted and reversed. In the single bloodiest day of the Civil War, Lee’s army was nearly destroyed. While McClellan let Lee escape back into Virginia with his army intact, the Union victory was sufficient for Lincoln’s political purposes. Five days later on Sept. 22, 1862, President Lincoln announced the preliminary Emancipation Proclamation, which declared that as of Jan. 1, 1863, “all persons held as slaves within any State, or designated part of a State, the people whereof shall then be in rebellion against the United States shall be then, thenceforward, and forever free.” The threat of English and French intervention on behalf of King Cotton was at an end.
If their interviews are any indication, it is this history of the battle of Antietam and its aftermath which the producers of Confederate seek to rewrite. On July 20, David Benioff explained to Vulture how he and co-producer D.B. Weiss conceived of the series:
In a dorky way, I guess it goes back to — we’re both history nerds. I remember reading a history of the Civil War, I think it might have been the Shelby Foote one. And there’s a famous story, which I’m going to mash up, because my memory’s not what it used to be — but there’s a famous story of when Robert E. Lee was invading the North. Not the Gettysburg invasion, but an earlier one. And the set of orders got misplaced and were found by a Northern soldier. And it ended up ruining Lee’s invasion. A lot of people think if the orders hadn’t been lost, things might have been different: The Confederates might’ve sacked Washington, D.C., it’s possible the South could’ve won the war. So that notion of, what would the world have looked like if Lee had sacked D.C., if the South had won — that just always fascinated me. And history as a genre has always been interesting to me. That was really the initial thing. I wish I had a more specific trigger moment for you, but I don’t.
Leaving aside for the moment Benioff’s lack of recall about the name of the decisive battle, the plot twist’s dependence on “Lee’s Lost Order” is more than a little problematic. It’s not just that Lee’s 50,000-man army was outnumbered by McClellan’s 85,000 and 72,000 more Union troops in Washington, DC under the command of Gen. Nathaniel Banks. On Sept. 13, Corporal Barton Mitchell of the 27th Indiana did in fact find a copy of Gen. Lee’s order for the Maryland campaign wrapped around three cigars. McClellan may have proclaimed, “I have all the Rebel plans and will catch them in their own trap,” but he did not aggressively act on his advantage. With Lee’s army split, Union troops could have attacked Stonewall Jackson then en route to Harper’s Ferry and ambushed the main body of Lee’s force as well. But neither of those things happened because the ever-cautious McClellan once again proved over-cautious. After stopping Lee at Antietam, the Union General let him safely cross the Potomac back into Virginia. As Ken Burns’ The Civil War described it:
McClellan had plenty of reserves waiting outside Sharpsburg, but he never used them. Lee, outnumbered 3-to-1, braced for a new attack all the next day. It never came. On the 18th, Lee and his army slipped back across the Potomac. McClellan could claim a victory, but he could have won the War. Lee’s invasion had been halted, he had suffered terrible losses, but his army had not been destroyed.
But what if Lee’s army had been destroyed at or after Antietam? What if George McClellan somehow suddenly found the nerve in September 1862 that always seemed to desert him in the past? What if Abraham Lincoln had already found the general who “can face the arithmetic”—Ulysses S. Grant—in the fall of 1862 instead of 18 months later?*
The destruction of Lee’s Army of Northern Virginia could have been followed by the collapse of the Confederate government. With no significant Southern forces in its way, the Army of the Potomac could have swept into Richmond. Jefferson Davis’ government, which on April 2, 1865 evacuated Richmond to Danville in the southwest of the state, might not have been so lucky in October 1862. Captured by Union forces, it’s not difficult to imagine Davis, Vice President Alexander Stephenson, and members of the Confederate cabinet going to the gallows. In reality, Davis served only two years in jail, while Stephens, who in March 1861 described the “cornerstone” of the Confederacy as “the great truth that the negro is not equal to the white man” was elected to Congress from Georgia. Members of the Confederate Congress and other leading lights of the secessionist rebellion soon resumed their political careers in their states or in the nation’s capital, instead of facing permanent disqualification—or worse.
The Southern romanticizing of its generals might have been nipped in the bud as well. Robert E. Lee, the supposedly “kind” slaveholder, would have been reduced to the man who gambled it all and lost the war. His greatest victories, including the massacre of Burnside’s legions at Fredericksburg in December, the long-shot humiliation of “Fighting Joe” Hooker’s forces at Chancellorsville in the spring of 1863, and his slaughter of Grant’s attackers at Cold Harbor in 1864, never would have happened. The fanatically devout Gen. Thomas J. “Stonewall” Jackson would not have achieved his mythic status as a Confederate miracle worker and martyr if he had been simply captured or killed by Union troops in Harper’s Ferry as part of Lee’s Maryland campaign. Jeb Stuart, A.P. Hill, and John B. Gordon would not have been legends worshipped by Southerners for generations. Gen. James Longstreet, whose corps was savaged in Pickett’s Charge at Gettysburg, might not have been vilified for serving the Grant administration as an ambassador. And just as important, a rapid end to the official war by the beginning of 1863 would have meant that the mystic aura of “what might have been” surrounding the Confederate soldier after Gettysburg would never have to come to pass. As George Will (like Shelby Foote more than 20 years earlier) explained, the romanticism of the South's "Lost Cause" would owe much of its strength to Pickett's heroic and hopeless charge in the battle of Gettysburg, a contest that came so close to going the other way.
In "Intruder in the Dust," William Faulkner famously invoked the tantalizing power of possibility:
"For every Southern boy fourteen years old, not once but whenever he wants it, there is the instant when it's still not yet two o'clock on that July afternoon in 1863, the brigades are in position behind the rail fence…That moment doesn't need even a fourteen-year-old boy to think This time. Maybe this time with all this much to lose and all this much to gain: Pennsylvania, Maryland, the world, the golden dome of Washington itself."
Without Gettysburg, it’s a lot easier to replace a Florida monument to Johnny Reb with one commemorating the late, great Snooty the Manatee.
Now, the capture of Richmond and the decapitation of the Confederate government and top echelons of the Southern military in late 1862 and early 1863 does not mean the fighting elsewhere would have ended. But with Grant in command of all Union forces and William Tecumseh Sherman in charge of the western theater, closing off the Mississippi and hunting down Confederate guerrillas would have been accelerated. While Shelby Foote’s personal hero Nathan Bedford Forrest declared after Lee surrendered to Grant at Appomattox in 1865 that “any man who is in favor of a further prosecution of this war is a fit subject for a lunatic asylum,” he might have felt differently in January 1863. For his part, Sherman knew the danger posed by Forrest in Tennessee, Alabama and Mississippi. “That devil Forrest must be hunted down and killed,” Sherman warned, “if it costs ten thousand lives and bankrupts the federal treasury.” Forrest’s massacre of hundreds of surrendering black soldiers at Fort Pillow in 1864 would never have happened, but the animating spirit behind it doubtless would have:
“It is hoped that these facts will demonstrate to the Northern people that negro soldiers cannot cope with Southerners.”
But the imperative to quell the lingering rebel insurgency in the southern and western states and the requirements of a harsher brand of Reconstruction would have demonstrated to the Northern people the immediate need for regiment after regiment of black troops clad in blue. It was not until after their bloody sacrifice at Battery Wagner, South Carolina on July 18, 1863 that the New York Tribune said of the African-American troops’ valor:
“It is not too much to say that if this Massachusetts 54th had faltered when its trial came, two hundred thousand troops for whom it was a pioneer would never put in the field … But it did not falter.”
During the war, the liberation of 4 million black slaves by hundreds of thousands of black Americans, slave and free, would represent a victory, as Frederick Douglass described it, “by the very class of men which have a deeper interest in the defeat and humiliation of the rebels than all others.” This prescription for helping to bring an end to the war “in the shape of warm lead and cold steel, duly administered by 200,000 black doctors” would also send a powerful message to the conquered south afterward during Reconstruction.
And to be sure, the political and legal framework for Reconstruction would look altogether different in the wake of the South’s defeat in late 1862. With no assassination of Abraham Lincoln, there is no Andrew Johnson, no conflict with the Radical Republicans, and no impeachment. In fact, there is no need for a Democratic Vice President at all. The sudden victory after Antietam means the appeasement to border state sensitivities by the federal government can come to an end. The carnage and disappointments in Virginia and Georgia of 1864 don’t happen. The anti-war movement in the North is snuffed out. Lincoln doesn’t face defeat at the polls from Northern Democrats and their “peace now” candidate George McClellan. Vice President Hannibal Hamlin, Republican of Maine, doesn’t get replaced on the ticket by the Tennessee Democrat Andrew Johnson. (If Hamlin is displaced, it’s likely by a Republican more radical than Lincoln.) Victory by 1863 means President Lincoln has more room to maneuver in 1864 and throughout his second term.
That difference might have made all the difference when it came to the composition and disposition of the Supreme Court under Presidents Lincoln and Grant. The 13th , 14th, and 15th “Reconstruction” Amendments to the Constitution between 1865 and 1870 fundamentally changed the definition of American citizenship and altered the relationship between the federal and state governments. But the freedom that was won on the battlefields of the Civil War and on the drafting tables of those constitutional amendments was lost to racist, retrograde Supreme Court justices who robbed them of their clear meaning. The result, Ian Milhiser laments, is that the Court became “the midwife of Jim Crow, the right hand of union busters, and the dead hand of the Confederacy.” As Lawrence Goldstone wrote in his 2011 book, Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865-1903:
In the years following the Civil War, the 13th Amendment abolished slavery; the 14th conferred citizenship and equal protection under the law to white and black; and the 15th gave black American males the right to vote. In 1875, the most comprehensive civil rights legislation in the nation's history granted all Americans "the full and equal enjoyment" of public accommodations. Just eight years later, the Supreme Court, by an 8-1 vote, overturned the Civil Rights Act as unconstitutional and, in the process, disemboweled the equal protection provisions of the 14th Amendment.
The damage done to the 14th Amendment’s guarantees of equal protection and due process of the law was especially severe and long-lasting. For its champions like Thaddeus Stevens, Charles Sumner, and drafter Rep. John Bingham, the objective of the 14th Amendment was to realize the “new birth of freedom” Lincoln proclaimed in the Gettysburg Address. Its intent was clear: the states—and not just Congress—could not abridge those liberties protected by the Bill of Rights. As Bingham put it, “The privileges or immunities of citizens of the United States,” Bingham explained, “are chiefly defined in the first eight amendments to the Constitution of the United States.”
But the Court had other ideas. In the Slaughterhouse Cases, the Supreme Court by a 5-4 margin upheld a Louisiana law regulating and centralizing the work of New Orleans’ butchers for public health reasons. Yet Justice Samuel Miller upheld the law on narrow grounds and rejected the notion that 14th Amendment incorporated the Bill of Rights’ protections against the states. But the argument of John Archibald Campbell, a former official of the Confederate War Department and foe of the newly elected Louisiana legislature featuring 35 African-American representatives, fueled an influential dissent by California Democrat and 1863 Lincoln nominee Stephen Johnson Field. Among the privileges and immunities protected by the 14th Amendment, they claimed, was the right of businesses to operate without regulation by the states. As Campbell put it:
“Can there be any centralization more complete or any despotism less responsible than that of a State legislature concerning itself with dominating the avocations, pursuits and modes of labor of the population[?]”
The toxic blend of racism and pro-business ideology came to control federal 14th Amendment jurisprudence until the New Deal. After a former Confederate officer led a vigilante band of white supremacists in the massacre of 150 African-Americans trying to protect their victory in the 1873 elections in Colfax, Louisiana, a federal prosecutor succeeded in convicting Cruikshank and two of his followers for violating their civil rights. But as Milhiser explained, in United States v. Cruikshank (1876):
Former slaves, Chief Justice Morrison Waite wrote, “must look to the States” to vindicate many of their constitutional rights. He wrote these words as murderous racists were rapidly seizing control of state governments in the South.
With the Court striking down the Enforcement Acts of 1871 and the Civil Rights Act of 1875, the freedmen lost almost all the rights they had briefly gained. Access to public accommodations and the ballot box disappeared as the gavel, the gun, and the hood ensured the re-entrenchment of white supremacy across the South by the time Reconstruction was abandoned in 1877:
After the Supreme Court ruled against the Civil Rights Act of 1875, every single Southern state redrafted its constitution. In South Carolina and Alabama, ballots were introduced to make it virtually impossible for people with poor reading skills to correctly cast their votes. In Mississippi, voting tests required applicants to interpret a section of the state constitution — whites were given a simple clause to read, while blacks were given some of the most difficult passages in the constitution, some of which had been written for that very purpose.
(If you have any doubt about the pain this still causes today, just ask Rep. John Lewis of Georgia. In an episode of "Finding Your Roots with Henry Louis Gates, Jr.," Lewis learned his great-great-grandfather was briefly able to vote in Alabama in the late 1860s before the iron fist of Jim Crow came crashing down. "Knowing that a member of my family registered and voted in Alabama a hundred years before I did, before my mother and my father, my grandparents … it's just incredible,” a tearful Lewis cried, “This is too much." The Republican voter suppression efforts now underway across the nation show the enduring truth of Lincoln’s words in 1862: “The struggle of today, is not altogether for today - it is for a vast future also.”)
Meanwhile, in 1886, the Supreme Court recognized not African-American personhood but corporate personhood in Santa Clara County v. Southern Pacific Railroad. In Plessy v. Ferguson (1896), the Court entrenched “separate but equal” accommodations in railway cars. Nine years later in Lochner v. New York, the conservative Supremes struck down state regulation of working conditions and hours for bakeries, inventing a “right of contract” that many right-wingers like Kentucky Sen. Rand Paul to this day want to resurrect.
Now, some or even most of the Supreme Court’s disgraceful rollback of civil rights for the 4 million freed African-Americans and millions more American workers may have been inevitable. After the Civil War, the United States—North and South—was a thoroughly racist, deeply conservative, and utterly exhausted nation. But a two-term President Lincoln and a more assured, confident President Grant may have done better. And to be sure, as his delay in embracing the abolition of slavery and his continued dalliance with the “colonization” of blacks to Africa and South America showed, the Abraham Lincoln of 1861 and 1862 was no radical. Nevertheless, a sudden Union victory after Antietam and the need to crush the lingering Confederate insurgencies it would leave in its wake would have required a firmer hand. Lincoln could act “with malice towards none, with charity for all” and still “think anew and act anew.” As Frederick Douglass summed up his friend in 1876:
Viewed from the genuine abolition ground, Mr. Lincoln seemed tardy, cold, dull, and indifferent; but measuring him by the sentiment of his country, a sentiment he was bound as a statesman to consult, he was swift, zealous, radical, and determined.
As for Ulysses Grant, the methodical, unflappable commander of Union forces had a largeness of spirit and sense of mercy his former foes neither reciprocated nor deserved. Accepting Lee’s surrender at Appomattox, Grant later wrote that, “I felt sad and depressed at the downfall of a foe who had fought so long and valiantly, and had suffered so much for a cause, though their cause was, I believe, one of the worst for which a people ever fought.” Grant didn’t merely offer Lee’s army generous terms, but protection from the judgment of history. In 1869, a group of congressmen presented then-President Grant with a proposal to add to the Capitol rotunda a huge mural depicting Lee’s surrender to him at Appomattox. The victor of Donelson, Shiloh, Vicksburg, Chattanooga, Petersburg, and Richmond would have none of it:
"No, gentlemen, it won't do. No power on earth will make me agree to your proposal. I will not humiliate General Lee or our Southern friends in depicting their humiliation and then celebrating the event in the nation's capitol."
A hundred fifty years later, it’s long past time to stop the veneration of General Lee and our “Southern friends.” We know what they did—and why—during the Civil War and after. (If you have any questions, start with New Orleans Mayor Mitch Landrieu and his speech in May about the “Cult of the Lost Cause,” which still has as its goal “to rewrite history to hide the truth, which is that the Confederacy was on the wrong side of humanity.”) Whether HBO ultimately airs Confederate and whether audiences large or small watch it, it won’t change the real pain that millions of Americans still must confront every day. And it shouldn’t obscure the tragedy of what might have been for all of us: a freer, more equal, and more just United States of America. After all, Martin Luther King, Jr. was still dreaming of a day when “this nation will rise up and live out the true meaning of its creed: ‘We hold these truths to be self-evident, that all men are created equal’” 98 years after the end of the Civil War.
Instead of seeking entertainment in a story of how that dream could be further delayed, imagine a different history which instead accelerated its realization. It’s not hard if you try.
* Putting Ulysses S. Grant at the head of all Union forces in September 1862 requires a more gymnastic exercise in counterfactuals. For the purposes of my scenario, I’m going to throw in an inconvenient heart attack removing Gen. Henry Halleck as commander in the west in May 1862. With the more aggressive Grant now in charge, the Union armies breakout after Shiloh to move on Corinth, Mississippi, and onto Vicksburg to cut the Confederacy in two. After Second Bull Run, Lincoln replaces Gen. Pope with Grant as overall commander of the 700,000-man Union armies, while Sherman takes his place out west. That means that when Lee invades Maryland that September, Grant and not McClellan is waiting for him.
