The United States was founded on a contradiction: all men are created equal; our Constitution enshrines slavery. (See post 239.) The Civil War was an attempt to resolve that contradiction. To this day thats not fully understood. There are still books being written, and plenty of university lectures being given, showing that Lincoln "really" wasnt opposed to slavery, since he did nothing to abolish it before the Emancipation Proclamation, and that only applied in the Confederate states.
But when Lincoln became President he took this oath:
"I do solemnly swear (or affirm) that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
That meant he swore to protect and defend slavery. If Lincoln can justly be charged with hypocrisy on the issue of slavery (real hypocrisy, as opposed to political trimming, or talking like a 19th-century man) its because he took that oath. His inauguration was the moment when he compromised with evil.
The Civil War was a massive federal intervention in the internal affairs of the states. The Southern politicians with their constitutional theories – John Calhoun and Alexander Stephens poured a lot of energy into theorizing, and Jefferson Davis elaborated on their theories after the war – had a point: the pre-war Southern order was constitutional. That was the problem.
The Confederacy was, in a dark and (to this day) disturbing sense, a constitutional movement. When modern Americans reject out of hand the pre-war Southerners constitutional arguments, we engage in political denial. The evil at the heart of pre-War Southern culture wasnt that it was based on bad constitutional doctrine. Wed like our law to be moral, but that wish doesnt make law and morality coextensive. There are still those who insist it was lawful for Cromwell to massacre the citizens of Drogheda, too, as if that were the point.
In a constitutional sense, the North rather than the South was the rebellious party. The North used overwhelming violence to smash the pre-war constitutional order. After the war the Constitution was fundamentally rewritten to institutionalize the Norths victory. That was the meaning of the three Civil War Amendments.
Dont let their brevity fool you. They fundamentally changed the American political structure. The Bill of Rights, when originally drafted (Justice Scalias historical fantasias aside – see post 238), restricted only the power of the central government. The 14th amendments privileges or immunities clause made it a restriction on state governments, too.
The 15th amendment reads:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Its easy for modern Americans to think of that as little more than pious boilerplate, like the want ads that assure you Company X is an equal opportunity employer and that University Y "encourages applications from women and persons of diverse ethnic backgrounds." Who could be opposed to that?
But when you pause to remember what Martin Luther King was doing in Selma – nearly a century after the 15th amendments ratification – you realize one reason why the 15th was the last of the Civil War amendments to achieve ratification.
But theres another reason 19th-century American conservatives – even those relatively without racial prejudice, the solid Lincoln men – found it difficult to accept the 15th amendment. That other reason is contained in the little phrase "by any State." This, rather than the guarantee of voting rights itself, enshrined the Union victory. It meant that the federal government could intervene in the operations of state government. It was a threat to send Sherman down to Georgia again, if the readmitted states attempted to reimpose their pre-war political systems.
There really cant be much doubt that the pre-war Southern state governments faithfully reflected the wishes of a majority of their states voters. If "democracy" is defined as majority rule by registered voters, the seceding states were democracies. And that means that the Union victory overthrew democratic governments to impose a form of political rule that – seemingly by definition – was other than democratic.
One answer is to say that Lincoln was himself democratically elected, and that the principle of majority rule must mean the aggregate majority prevails over each subsidiary majority. Another answer is to say that the Southern states restricted the franchise so drastically – no women, no Blacks, no propertyless white trash – that they werent true democracies, anyway. The country clubs membership committee might operate by majority vote, but that doesnt give the gentlemen in white cleated shoes the right to tell the rest of us how to live our lives (even if no one has broken the news to them yet).
A third answer is that democracy is a means for achieving a relatively just society, while slavery prevents that achievement, making its eradication a precondition to true democracy. But the fourth and, I think, conclusive answer is simply that the South lost the war. The Civil War, rather than the founding – rather than Marbury v. Madison – was the decisive event in Americas constitutional history.
That sounds jarring, but only because we – at least, the lawyers and judges among us – like to pretend that law is based on something other than force. The real-world authority of judges is wholly dependent upon precisely those law enforcement officers they condescend to in their opinions – and an imperfectly-suppressed awareness of that dependency explains much of the condescension, I think. People dont obey judges because the judges possess unassailable moral authority, but because they dont have any choice. Moral authority is indeed a great and good thing, but moral authority backed by Kevlar-suited SWAT teams is even better.
Judicial power consists of eliminating freedom of choice. (I tell my paralegal students that the way to distinguish primary and secondary sources of the law is that primary sources can make you do things you dont want to do.) The Unions military victory in the Civil War was an injunction on a massive scale. (Talk about class actions!) The Union eliminated the white Southerners freedom of choice – which is what any effective law does to anybody subject to it.
The great tragedy that befell the United States in the second half of the 19th century was the Supreme Court. The post-war Court bent its energies to reconstituting the pre-war political order, the one familiar to the justices from their salad days at the bar. It must be said in their defense that they didnt outright prohibit the enforcement of the 13th amendment, abolishing formal slavery, but perhaps only because no one litigated the issue all the way up. (They did, however, rule that the amendment had no effect on pre-war contracts for the sale of slaves, since anything else would be a taking of slave property without just compensation.)
But they drew the line at the 14th and 15th amendments. American courts, the Supreme Court ruled, could not be permitted to enforce those. Otherwise, the legal system would be fundamentally altered. (See post 244.) As Justice Field ossified, he came firmly to believe that the Civil War amendments altered the pre-War order only with regard to slavery. For example, in denying the right of the federal government to coerce a Virginia official into permitting Blacks to serve on juries, Field wrote:
I cannot think I am mistaken in saying that a change so radical in the relation between the Federal and State authorities, as would justify legislation interfering with the independent action of the different departments of the State governments, in all matters over which the States retain jurisdiction, was never contemplated by the recent amendments. The people in adopting them did not suppose they were altering the fundamental theory of their dual system of governments.
His mode of argument, that the meaning of constitutional provisions is to be divined from the intent of the framers rather than from the meaning of the words on the page, and that individual Supreme Court justices can confidently determine the single intent that motivated millions of people, has, strangely enough, not yet been ridiculed into oblivion. (See post 79.)
Working on their conviction that neither the Civil War nor the Civil War amendments altered the fundamental theory of the American system of government, Field and his fellows finally succeeded in surrendering to the Confederacy 31 years after Appomattox. (See post 244.)
It was only two decades later that some of the justices – including that Union veteran Oliver Wendell Holmes – began to have second thoughts about the long surrender.
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