•Susan-Mary Grant CHAPTER

CHAPTER
Individual Rights and Constitutional
Powers
The Impact of the Civil War
PAT LUCIE
“There is quite as much trouble in the reformation of an old constitution as in the establishment of anew one, just as to unlearn is as hard as to learn,”
as Aristotle reminds us.
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In 1861 the American Constitution was indeed in much trouble. Abolitionists had styled it a covenant with death an
“agreement with hell a scaffold for slavery. When the Southern states walked out of the Union in anger that it was insufficiently protective of Southern interests, pessimists feared the Constitution was doomed to be a suicide pact, lacking even the means of self-preservation. In both the North and
South, this question had to be addressed—was there a fatal flaw in the
Constitution? The years of civil war and reconstruction that followed were to be, in effect, a second Constitutional Convention, another chance to
“secure the blessings of liberty Bruce Ackerman has called it one of only three “transformative moments in American constitutional history, when the people addressed the nature of their fundamental law and sanctioned the making of higher law rules which govern but are beyond ordinary politics.
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The Philadelphia Convention was the first, when the Constitution was framed and ratified. The second was the Civil War, in the wake of which the Constitution was repaired and in a sense completed by its adoption of freedom and equal citizenship. The New Deal was the third, when the balance of federalism altered decisively in favor of the federal government, with respect not only to the economy, but also to the meaning of citizenship. The Supreme Court laid the foundations of anew era in constitutional jurisprudence which came to put individual rights at its heart and in practice nationalized the Bill of Rights.
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There are always risks in selecting and describing transformations. On close inspection they turnout to be complex processes and invariably they invite dispute. In the case of the American Constitution there is another peculiar hazard in describing change. Lawyers, judges, and politicians, who write most of the history of the Constitution, have a vested interest in legitimacy. Their investigations of the past are often prompted by the need to find a believable genetic link between their present constitutional agenda and the fundamental law of the Constitution. This means that, even as the
Constitution is in the process of change, there is a constant spin put on it to explain and reorder the past in such away as to define an orderly or a true lineage and to oust illegitimate offspring.
The Civil War was fought by two sides claiming legitimacy. Each championed constitutional liberty and self-government, and each aspired to achieve it by remaining faithful to the design of the Founding Fathers. The
Southern states were the first to make textual changes. The Confederacy was established in 1861 under anew Constitution, which took only two weeks to write and which was closely based on the words and structure of the US. Constitution. It did, however, also contain many significant changes,
most of which were designed to redress grievances against the North’s supposed misinterpretations of the Constitution in the antebellum period.
The end result, I shall argue, neither preserved the work of 1787 nor improved upon it. Had the Confederacy survived, its leaders would have to have acquired more insight into the science of government as well as the nature of liberty.
The Union side had the advantage of fighting with the ready-made machinery of government as well as the text of the Constitution, though its adequacy to the task of self-preservation was not a foregone conclusion.
Although no changes were made to the text until the Thirteenth Amendment in 1865, the Republicans embarked on a steep learning curve as soon as the first shots were fired at Fort Sumter. Curiously, until then, the Constitution had led a relatively unexamined life. True, it was seldom out of the news in antebellum America. Every purveyor of sectional argument or civic piety wrapped himself in its authority. Serious critical study, however, began with war. President Lincoln and the Congress found within the Constitution the powers and tools of self-preservation.
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But in the course of war they also discovered a flaw in the Constitution’s design. It had come to be so centered on states rights, so focused on denying powers to the federal government which might deprive citizens of their rights, that it lacked the power to protect and guarantee individuals these rights when they were threatened by the states themselves or by private powers. The vacuum at the heart of federalism was at its most obvious when the government began working out how to protect emancipated slaves in hostile local environments far from
Washington. But it also became clear that it was more than a question of
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Pat Lucie

What shall be done with four million freed slaves The larger question was about the liberty of all Americans. The guarantees of the Bill of Rights applied to persons and the people What did they amount to if states and local governments could take them away and the federal government could do nothing to stop them What did it mean for the integrity of government if the federal government could not protect its citizens in Massachusetts or South Carolina These were questions which could not be answered without transforming the Constitution, not only in text but inhabits of mind,
in what people expected of their governments and their neighbors.
In a nutshell, the Republicans made the individual rights of all persons federal business. Between 1865 and 1870 the Constitution was amended three times. The Thirteenth Amendment forbade slavery everywhere except as a punishment for crime. The Fourteenth Amendment guaranteed all persons born in the United States the privileges and immunities of citizenship and prohibited states from making or enforcing any law abridging these.
It also prohibited states from depriving any person of life, liberty, or property without due process of law, or denying any persons the equal protection of the laws. The Fifteenth Amendment denied any government, state or federal, the power to deprive US. citizens of the right to vote on account of race, color, or previous servitude. The powers of Congress were enlarged to enforce these guarantees, and Congress passed a number of important civil rights laws to do so. The federal courts, as we shall see, became the lynch- pin of constitutional change, and to them fell the greatest share in the task of explaining the meaning of the amendments, how far-reaching or otherwise they were intended to be, what was legitimate to build out of them, and how they fitted into the lineage of the Constitution.
The most cursory glance at the business of the Supreme Court in the early twenty-first century reveals the centrality of these Reconstruction amendments and civil rights laws to modern American constitutional law and its endless debates about the scope and content of rights. Litigants making claims about everything from gay rights to abortion to discrimination in private housing continue to use the pathways into federal courts created in the sand lawyers on all sides frequently return to the congressional debates of those years to recruit arguments about original intentions.
The apparent continuity between the past and the present, however, lays a trap for assessing the legacy of the Civil War. The discontinuities are equally evident.
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Between 1877 and 1954 victories won for individual rights in federal courts were few and far between. Over the course of these eighty years or so the prevailing orthodoxies in constitutional law pared the rights guaranteed in the three constitutional amendments and their legislative offspring right down to the barest meanings consistent with the English language and the interests of the post-Reconstruction governing elites.
Arguably the separate but equal doctrine that sustained Jim Crow
Constitutional Powers
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represents the apogee of these efforts. It is tempting to interpret this period as some kind of aberration before returning to a post-New Deal period in which liberal values finally triumphed and the true legacy of the Civil
War’s promise of equality was, and continues to be, implemented. Something more realistic will be argued here. The legacy of the Civil War remains contested. Some of its aberrations still prevail, some of its truths still lie dormant, and scholars are divided about what belongs to each category.
There is another link between the Civil War and contemporary contests over constitutional rights. The war on terror and the deployment of troops in Afghanistan and Iraq have reminded Americans that war powers invoked in the name of defending and securing liberty can also endanger it. Lincoln,
it seems, was not the last Republican president to be accused of trampling on civil liberties by arresting civilians, denying them the right of Habeas
Corpus, and even sanctioning their trial by military tribunals where the ordinary courts were open. Once again in American public life there is a great debate about rights in time of war, about the relative balance between order and liberty, and between collective and individual rights. Whilst the jurisprudence of individual rights continues to be centered on the meaning of the Bill of Rights, and particularly its application to the states through the Fourteenth Amendment, there is fresh interest in structural questions and in the checks and balances that the Framers in 1787 believed were the most important guarantee of liberty.
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