Speaking in Ohio in September 1859, Abraham Lincoln remarked, “We must not disturb slavery in the states where it exists, because the constitution, and the peace of the country, both forbid us.” He then added: “But we must, by a national policy, prevent the spread of slavery into new territories, or free states, because the constitution does not forbid us, and the general welfare does demand such prevention.”
Lincoln’s reverence for the U.S. Constitution ran through his policies like a leitmotif during the secession crisis of 1860-’61 and then the bloodbath that unfolded over the next four years. Historians unfortunately have generally paid short shrift to constitutional questions when interpreting the Civil War.
Timothy S. Huebner’s excellent “Liberty and Union” provides an overdue re-examination of constitutional and legal developments from the antebellum era through Reconstruction. Huebner, who teaches at Rhodes College, focuses on how the conflict revolutionized slavery and sovereignty, two of the most controversial questions of the founding era.
He notes correctly that before the Civil War the national debate over slavery centered largely on Southern slaveholders – their rights to recapture fugitive bondsmen and to transport their chattels into new federal territories. In the 1857 Dred Scott case Chief Justice Roger B. Taney declared that slaveholders’ rights were “distinctly and expressly affirmed in the Constitution” and that black Americans “had no rights which the white man was bound to respect.” Lincoln essentially adhered to this constitutional interpretation in his 1859 speech.
The Civil War and Reconstruction transformed the national political debate. Whereas Taney had relied on the Fifth Amendment to underscore property rights, African-Americans and their white allies pointed to the Declaration of Independence to defend the rights of all humans. “The rights of black people,” Huebner explains, “suddenly moved to the forefront as the long efforts of black constitutionalists finally bore fruit.”
Thanks to the 13th (1865), 14th (1868) and 15th (1870) Amendments the freed people enjoyed civil, political and social rights, including mobility, property ownership and the right to sue in courts. Huebner credits Ulysses S. Grant, often disparaged as an ineffectual president, with initiating “a sincere and at times successful six-year-long effort to enforce these new constitutional guarantees.”
But these hard-fought social rights faded quickly, especially following the Supreme Court’s 1883 ruling in the Civil Rights Cases that Congress lacked the power to prohibit discrimination in public accommodations. “Tellingly,” Huebner concludes, “most white Republicans offered no more than a whisper of opposition to the ruling. Social equality for African Americans had never been high on the party’s agenda, and the Court decision essentially allowed the legal apparatus of racial segregation to take shape.”
The Civil War also changed America’s national debate over sovereignty and state power. The Confederacy signified “an extreme understanding of the sovereignty of states” that paradoxically forced white Southerners to construct a centralized government, raise an army and establish a national identify.
Northerners, meanwhile, extended the reach of the national government dramatically, including currency, land distribution, railroads and, most notably, by emancipating the Confederacy’s slaves. During Reconstruction “national power expanded in unprecedented ways,” Huebner observes. “Republicans in essence attempted to transform the relationship between liberty and power, making the national government a powerful agent in the protection of individual liberty.”
In essence, then, the Civil War wove liberty and union into the fabric of American constitutionalism. As Lincoln understood, the Constitution had not forbidden it and the general welfare demanded it.
John David Smith is the Charles H. Stone Distinguished Professor of American History at UNC Charlotte. His most recent book is “Interpreting American History: Reconstruction.”
Liberty and Union: The Civil War Era and American Constitutionalism
By Timothy S. Huebner
University Press of Kansas, 530 pages