Themes of the American Civil War

smacked more of harassment than accountability.
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Kentucky was the most litigious of places. What was at stake was the integrity of the federal government. If it could not oblige Ohio or Pennsylvania to obey the law, what hope did it have in South Carolina If it could not protect federal officers from harassment in Tennessee, what hope did it have of protecting freed slaves in Virginia?
The Republicans learned two things. One was that states rights carried to the point of intransigence were not a uniquely Southern problem. The other was that federal courts were vital to federal law. The Habeas Corpus
Act of 1863 was one of the most important Acts of the war. It allowed federal officers to remove cases against them from state to federal courts. State judges were not always willing to cooperate, and it had to be amended into impose sanctions against them. Defending this unaccustomed toughness on state courts, Senator Clark spoke in terms seldom heard before We have had about enough of this State authority to teach it to yield respect and obedience to the laws of the United States.”
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Of course the most momentous issue to test whether or not the federal government could protect its citizens and enforce its laws in hostile local environments stemmed from putting emancipation at the heart of the project to preserve the Union. The first steps were taken in the wake of the army when units moved into captured territory and disrupted slavery haphazardly and not always intentionally. Even before Lincoln’s Emancipation
Proclamation changed the whole tenor of war aims, the Congress was a step ahead, thinking about means as well as ends, remedies as well as rights.
More so than Lincoln, and much earlier, the Republicans were talking about a permanent change to freedom and how that status might be secured.
Like federal officers, freed slaves needed federal protection instate environments. So too did officers of the Freedmen’s Bureau, who were unpopular for trying to protect them. Ultimately, so did every citizen in the United
States, if he or she could not depend on state authority for the protection of his or her rights, for whatever reason.
Between 1861 and 1875 twelve measures increased the jurisdiction of the federal courts. As early as 1862, in the debates over a confiscation Bill,
Congressmen discussed the question of how to make the limited emancipation it effected a permanent one. A clause giving the freedman the right to a writ of Habeas Corpus only narrowly failed to be adopted in the final version.
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The Republicans in Congress, though welcoming of the
Emancipation Proclamation, began immediately to press for ways of making it permanent by creating remedies. To this end Section 12 of the Wade Davis
Reconstruction Bill, pocket-vetoed by Lincoln, would have used the federal courts to guarantee freedom. One of the strongest regrets of its sponsors was the loss of that judicial remedy. It was a temporary setback, however.
All three constitutional amendments opened the doors of the federal courts
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to litigants denied the rights they granted. It was a feature of all the Civil
Rights Acts passed to enforce the amendments that they matched rights with judicial remedies and procedures for asserting federal overstate jurisdiction. There was no master plan to correct the state-centeredness of the prewar Constitution and the remedies were not self-executing if they encountered massive popular resistance. Nonetheless there was an emerging coherence. The arteries were now in place to carry a two-way traffic to take constitutional rights into the states and carry claims of violation from state to federal forums.
This, however, was just first base in what was an even more difficult journey to give substantive meaning to the law of individual rights. The
Thirteenth Amendment ended slavery and guaranteed—what? If freedom was the corollary of the absence of slavery, it was not necessarily self- explanatory, other than that the membership condition of the status was to be human. The amendment was more than a ceremonial ratification of something already achieved in practice by the war and the Emancipation
Proclamation. It was potentially the most radical alteration to the
Constitution. It escaped the formula of the Constitution that people were free if their governments were not. Instead it restrained individuals directly from holding anybody to involuntary servitude. For the first time it enlarged national power, the power of Congress, to enforce it against any and all transgressors. The debates on the amendment make it clear that freedom was defined not as the absence of slavery, but as a positive entitlement to the rights which slavery had denied.
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Immediate, continued denials to the freed slaves of everyday ingredients of control over their own lives, such as the right to earnings, to own property, enter contracts, give evidence against whites in courts, or rely on the protection of the laws prompted
Congress to pass the Civil Rights Act in 1866. It counteracted the Black Codes in the South, but it applied to everyone in the Union. It was the first invocation of congressional power to reach individuals as well as state officials who denied any citizen of the United States the same protection as white citizens in the having and holding of civil rights. Far from being evidence of a static description of what Republicans meant by freedom, it was the first energizing of a permanent federal power to respond to changing circumstances. Only time and experience would identify the impediments to freedom in people’s lives. In 1866 the Black Codes were identified as an impediment. Later, Congress identified other things which perpetuated the badges and incidents of slavery, such as exclusion of black people from public accommodations. The Civil Rights Act of 1875 attempted a remedy by forbidding discrimination in a range of public facilities. The Supreme
Court struck it down.
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Until then the federal courts had, on the whole,
given a sympathetic hearing to claims raised under the amendment. By when the Civil Rights Cases were decided, the courts had begun their long
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march away from a commitment to equality under the law, certainly if it involved crossing state boundaries to reach private action in all but frank attempts to deny the freedom of former slaves. The case is better known for fixing the theory that the Fourteenth Amendment applies only to state action in constitutional cement, but it also reined in the Thirteenth and its more radical legislative progeny. The little light that was left was held in Justice
John Harlan’s dissenting opinion, which articulated a broader vision of the
“badges and incidents of slavery that needed to be eradicated before freedom was meaningful. It was almost a century before the Thirteenth
Amendment was rediscovered and put to use in Jones v. Alfred Meyer as a tool to reach private racial discrimination in housing.
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The greatest disservice to the Fourteenth Amendment has been the attempt by lawyers and historians to make a list out of it. If the Framers sought to put the 1866 Civil Rights Act beyond constitutional doubt by amending the Constitution, it was not as a list. According to the most conservative understandings, it was only these basic civil rights which, passed to give effect to the Thirteenth Amendment, that also formed the backbone of the phrase privileges and immunities” of citizens of the United States which the Fourteenth Amendment prohibited states from infringing.
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A
more radical interpretation, but one still wedded to the idea of enumeration,
is that the list of protected rights was intended to be coextensive with the Bill of Rights, which in 1868 the Framers made applicable to the states through the language of the Fourteenth Amendment. Although the Supreme
Court had held in Barron v. Baltimore that the Bill of Rights was a limitation on the federal government and not on the states, abolitionists had argued for thirty years that it applied to all governments, and that the federal government was endowed by the Constitution with the power to secure it.
There is a good deal of support for this belief among the speeches of some of the amendment’s chief sponsors, especially John Bingham. On the other hand, there are many more wooly and inconclusive references to fundamental rights than there are to the specific content of the first eight amendments of the Bill of Rights. The debate cannot be resolved by an exhaustive war of quotations from the congressional debates. Just such a war about original intentions broke out among academics and Supreme Court judges in the late s, however, when the Supreme Court began to apply some of the rights contained in the Bill of Rights to the states. Despite a flurry of academic activity, the Court eschewed any theoretical version of history and favored an altogether more pragmatic approach. It began a process of gradual, selective incorporation that has resulted in a de facto nationalization of the Bill of Rights that has become one of the most important pillars of modern constitutional law.
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The modern incorporation of the Bill of Rights is not, in general terms,
at odds with the original intentions, but arguments about which rights were
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intended to be included, and which were not, miss the sense of work in progress that prevailed in the Congress. Lists were not what the Republicans were trying to write, and most speakers were just as inclined to end a sentence about liberty with and soon as were their forefathers at Philadelphia.
The expectations and daily habits of citizenship were too varied to make a federal code of them. From the congressional debates on freedom and citizenship during the Civil War, there is a great deal of evidence to suggest that
Republicans shared a generally broad understanding that these terms straddled natural and common law rights, as well as the personal rights in the Bill of Rights. In other words, their thinking was not limited to the Bill of Rights. What they were learning was that freedom was a dynamic condition, often more defined in the breach than in the observance. What they had added to their understanding since 1787 was the need for judicial remedies and legislative powers to make it work. The Fourteenth Amendment,
like the rest of the Constitution, was about the art of government.
The Fourteenth Amendment used the familiar formula of securing rights by restraining government, but it did so by limiting one government and empowering another. It was the first clear, unequivocal limitation on the states. No state, it commanded, shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, or deprive any person of life, liberty, or property without due process of law,
or deny any person the equal protection of the laws. It continued to leave the states to generate the conditions of freedom and the forms of equal citizenship themselves, but, although no federal code or list was imposed, it did not mean that there were no discoverable federal standards. Nor did it mean that it applied only to state action, leaving private citizens complete freedom to ignore it. State failure to protect its citizens, state denial of the equal protection of the laws, and state complicity or encouragement of discrimination could give rise to federal action to protect individual rights.
It was for the federal courts and Congress to interpret and articulate the meaning of constitutional language and take appropriate judicial or legislative action. Like the Thirteenth Amendment, the Fourteenth invited
Congress to enforce it by appropriate legislation. The Fifteenth Amendment contained no federal definition of qualifications for the right of US. citizens to vote, but forbade governments of state or nation to deny the right on grounds of race or former condition of servitude. Once again, it empowered
Congress to enforce it.
The constitutional amendments preserved the familiar structures of federalism. But they made it possible for the federal government to exercise potentially radical powers to reach across state lines to secure the rights of individuals from infringements of them both by states and by private powers.
Local community was still important, and was expected to be the first, best hope of liberty, but it was not to be blindly trusted. Instead, the Republicans
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sought a balance between community self-ordering and federal power to ensure that all individuals enjoyed both rights and remedies. How well it worked in practice depended on how communities behaved, how much need there was for federal power to undo state and private wrongs, how broadly or narrowly Congress and courts identified the rights of US. citizenship,
and how they interpreted and acted upon denials of equal protection and due process.
And was this new understanding of the symbiosis between rights and remedies enough to achieve a lasting constitutional transformation It did not achieve equal citizenship or eradicate racial discrimination, but before attributing that to a want of ambition or to being prisoners of their time the scale of the effort should be noted. From the end of the war until about 1873, courts and Congresses, Bureau agents, government officials in the Department of Justice, free black citizens and committed white ones made vigorous use of the tools to hand, interpreting them broadly, and reaching to affect contracts between individuals, and punish violence by private individuals who deprived others of rights.
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Black citizens did not wait around as passive recipients of rights but acted on their instincts to seek their own liberty as individuals, families, and communities.
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It was never going to be easy. After 1873 the Supreme Court made it more difficult.
It interpreted the privileges and immunities” of national citizenship so narrowly that it effectively killed it, raised high the barriers of the Fourteenth
Amendment’s state action language to keep federal intervention at bay,
and found Jim Crow laws justified as an equal protection of the law.
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The quite evident intention of the Framers of the Thirteenth Amendment to reach private discrimination was buried under a mound of misconstruction. Meanwhile white people who had believed that constitutional change included all Americans were disappointed. Women were not to benefit.
The Framers intended no change in their legal status or that of Chinese
Americans or aliens.
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Indians and rights were mutually exclusive. With respect to the rights of black citizens, it was only occasionally that the courts after 1877 handed down decisions that echoed the intentions of the Framers.
The Constitution was not a machine which would goof itself even freshly dedicated to freedom and citizenship, and with the expansion of federal jurisdiction.
Of course it was not all down to a Supreme Court “retreat.”
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The original design was a riddle. Like the Constitution itself, the Civil War changes were about both structure and substantive rights, about power and the fixing of restraints as a means to enjoyment of undefined but now equal rights of citizenship. It was not doomed to fail, but it was not destined to succeed unless enough Americans wanted it to do so. After 1877 or so they did not.
It was a very different society almost 100 years later which produced the
“individual rights bearer and the civil rights battles of the 1960s.

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