Themes of the American Civil War

One early admirer was WM. Robinson, A New Deal in Constitutions Journal of Southern
History (1938). A more modern view of republican virtues, D. Nieman, Republicanism, the
Confederate Constitution and the American Constitutional Tradition in K. Hall and J. W.
Ely, eds, An Uncertain Tradition Constitutionalism and the History of the South (Athens, GAS. Cain, The Question still Lives The Freeman, May 1993, is less convinced. P. J. Parish, The Road Not Quite Taken The Constitution of the Confederate States of
America,” in T. Barron, OD. Edwards, and P. Storey, eds, Constitutional and National
Identity (Edinburgh, 1993). Mark E. Neely, Southern Rights Political Prisoners and the Myth of Confederate
Constitutionalism (Charlottesville, VA, and London, 1999). Quoted in De Rosa, Confederate Constitution p. 77. W. R. Robinson, Justices in Grey (Cambridge, MA, 1941). Roy P. Basler, The Collected Works of Abraham Lincoln (New Brunswick, NJ, 1953) VI, p. 267.
23.
Ex parte Merryman, 17 Fed. Cas. 144 (1861), decided at chambers. Perhaps Taney was a little disingenuous, but, after along foray into the importance of the writ in English history, he concluded that, the position being so plain under the constitution, the officer might have misunderstood his instructions, and so he ordered a copy of his judgment to be sent to Lincoln for him to determine what measures he will take to cause the civil process of the United States to be respected and enforced Mark E. Neely, The Fate of Liberty Abraham Lincoln and Civil Liberties (New York and Oxford, is a balanced but positive appraisal. Edward Corwin, The President Office and Powers (New York, 1940), p. 166.
26.
Ex parte Milligan, 71 US. 2 (1866). Harold M. Hyman, The Reconstruction Justice of Salmon
P. Chase (Lawrence, KS, 1997), pp. 135–7, explores its negative impact. William Whiting, The Government’s War Powers under the Constitution of the United States:
An Analysis of the Government’s Legal Powers to Fight Subversion, Treason and Civil War,
10th edn. (Boston, MA, 1864).
28.
Neely, The Fate of Liberty, pp. 109–12, documenting excessive and prolonged cold showers administered in six cases involving British subjects in 1864. James G. Randall, Constitutional Problems under Lincoln (New York and London, pp. 193–4.
30.
Congressional Globe, 39 Cong, 1 Sess., p. P. Lucie, Confiscation Constitutional Crossroads Civil War History (1977). Representatives
Morrill and Walton both argued for the inclusion of this enforcement procedure. Cong. Globe,
37 Cong, 2 Sess., p. 2362 and p. 2793.
32.
Lucie, Freedom and Federalism, chapter 5. In the Civil Rights Cases, 109 US. 3 (1883), Justice Bradley interpreted the scope of rights protected by the Thirteenth Amendment narrowly, and also severely restricted the reach of the Fourteenth Amendment to state action.
34.
Jones v. Alfred H. Mayer Co., 392 US. 409 (1968). Joseph Lee Jones claimed that Mayer Co.
had refused to sell him a house. The Warren Court found a violation of 42 U.S.C. 1982, the Civil Rights Act, guaranteeing that all citizens shall have the same right in every State or Territory as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property Interestingly, the older statute was used for its broader scope, rather than the newer 1968 Civil Rights Act. More recently Congress has passed the Civil Rights Act, which does address private discrimination. R. Berger, Government by Judiciary The Transformation of the Fourteenth Amendment
(Cambridge, MA, 1977), has been a very influential work in resisting any organic, broad interpretation of the Fourteenth Amendment, especially when used as grist to the mill of liberal judges. In the 1947 case of Adamson v. California, 332 US. 46 (1947), Justice Hugo Black argued that the Framers intended to incorporate the Bill of Rights in the fourteenth amendment and make them applicable to the states. Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights The Original Understanding 2 Stanford Law Rev. 5 (1949), is a scholarly refutation. Earl Malz, Civil Rights, the Constitution, and Congress, 1863–1869 (Lawrence, KS, is also critical, and L. Gingras, Congressional Misunderstandings and the Ratifiers’
Understanding,” Journal of Legal History (1996), directs attention away from Congress to the debates on ratification. Justice Black garners support in general terms from A. Amar, “The
Bill of Rights and the Fourteenth Amendment 101 Yale Law Journal (1992). Constitutional Powers
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