Themes of the American Civil War
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| Dred Scott v. Sanford. 16 The Confederacy had no vision of the individual rights bearer able to call on the protection of central government for any reason other than the protection of slave property. Even then, much of the paranoia of the Confederate constitution on that point reflects past anxiety rather than perceived dangers after secession. The Confederate faith was still in the local community. Historians have found much to admire in it, and the rediscovery of republican values of civic virtue, community, and public service have appealed to some as a more attractive alternative to a culture of individual rights. 17 But is it to be found in the Confederacy There were certainly interesting innovations. The President was limited to a six-year term in office and authorized to exercise more budgetary controls over Congress through a line veto. Congress could authorize Cabinet Ministers to sit and speak to their measures in Congress. Evidence of fiscal frugality and suspicion of party corruption abounds. Peter Parish has written thoughtfully about these and other aspects of The Road Not Quite Taken,” concluding that, whatever merits it had, the constitution’s design was so wedded to serving and perpetuating slavery that the road was ultimately not worth taking. It is hard to argue that civic virtue can be achieved at the price of denying the membership of 4 million people living in that community. 18 Wars test liberty. Governments need to raise armies, tax, regulate many of their citizens activities, and order compliance and loyalty. Throughout the war the Confederacy found itself trapped in the paradox of its commitment to states rights and its need to exercise sufficient powers to survive. The political culture of the South favored “hands-off ” libertarianism, but there was also a longing for order that was never matched by its political and judicial institutions. Although Jefferson Davis’s record on civil liberties was once thought to have been more sensitive than Abraham Lincoln’s, at least in terms of his restraint in suspending the writ of Habeas Corpus without first seeking congressional authority, Mark Neely calls some of the “myths of Confederate constitutionalism into question. 19 Governments on a war footing both north and south pursued unpopular policies, conscripting unwilling recruits, confiscating property, and restricting aspects of trade and travel. The state courts on both sides did a brisk business in dealing with complaints and there was no shortage of lawyers minded to speak of Magna Carta. Just as in the North, many Confederate citizens did not have their day in a civil court. Over 4,000 military arrests were made, Constitutional Powers • 325 consisting of the same mixed bag of noncombatants, dissidents, informants, smugglers, and deserters as the Union army picked up in greater numbers in its own turbulent backyards. Where military tribunals were frequently used to try these people in areas under federal control, the Confederate War Department had its equivalent in the Habeas Corpus commissioners, who, after a cursory examination, decided whether a prisoner should face trial. A decision not to send to trial meant detention for an indefinite time. The competing claims between liberty and order in the Confederacy had nowhere to go for resolution other than a volatile, largely decentralized political thicket. It had no central nervous system, no arteries to take Confederate laws into the states, adjudicate disputes from or among the states and their citizens, or give meaning to the checks and balances of the new constitution. The tumult of war, of course, had meant there was not much time to create one, but, more important, there was no inclination either. Although the constitution provided fora Supreme Court, none was established. Opposition to creating one came from decades of opposition to the ways in which the US. Supreme Court had created the foundations of an ever-expanding judicial power. When we decide that the State courts are of inferior dignity to this Court, we have sapped the main pillars of this Confederacy,” argued William Yancey. 20 In March, 1863, the furies erupted over a proposal in the Judiciary Act which would have given a Confederate Supreme Court an even more extensive appellate jurisdiction overstate supreme courts than that exercised by the US. Supreme Court. No agreement could be reached and a weaker version was also blocked. Although by this point in the war there was a demonstrated need to resolve issues arising from conflicting interpretations of Confederate laws, past experience raised fears, in some cases, to fever pitch. 21 Dred Scott v. Sanford had been a lonely, temporary victory for slaveowners and did nothing to allay the suspicion that a Supreme Court would be dangerously inventive and expansive in interpreting implied power and national authority at the expense of states. However good a friend Chief Justice Roger B. Taney had been to slavery, he was as good a friend of the supremacy of national judicial power. It was the North and not the South which was about to find some of his opinions very useful in building bridges into the states, turning them to serve emancipation and Reconstruction. There were Confederate district courts, but of limited jurisdiction. Their weakness was compounded by the fact that the Confederate constitution made its district judges removable by a vote of two-thirds of the state legislature, where the US. Constitution guaranteed its federal judges independence. State courts were the ones that mattered. The supremacy of Confederate law was a matter of state consent. Given the lack of a Confederate legal presence in the states, the success of the government in organizing its war effort is in some respects more remarkable than its 326 • Pat Lucie ultimate failure. Yet in the end its looseness endangered what was common or collective about the liberty it aspired to achieve. There was no mutually binding or enforceable obligation between government and citizen and no means of resolving disputes between and among citizens and states. It was not a design that could have sustained harmonious or effective government for long. Even discounting harmony and effectiveness in favor of maximizing the liberty of individuals, it was never going to survive in anything but the most homogeneous society and for anybody other than the strongest. Download 2.25 Mb. Share with your friends:
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