In the Wake of Slavery: Civil War, Civil Rights, and the Reconstruction of Southern Law (review)

In this brief but detailed and meticulously documented study, Joseph A. Ranney, a practicing attorney in Madison, Wisconsin, and a teacher of legal history at Marquette University Law School, seeks to trace changes in southern law in the aftermath of the Civil War. The war that destroyed slavery and expanded federal authority constituted “nothing less than a revolution,” Ranney argues, because it changed what he terms “race relations” and the “social hierarchy of the white South” (2). But much of Ranney’s evidence points not to revolution but rather to how postwar southern state laws continued and extended changes that were underway in both the North and the South before the outbreak of war.

State courts in the Confederate states functioned during the war, and they continued to operate afterward, sometimes with wartime judges continuing to serve and sometimes with new ones. Ranney describes and accounts for the various ways southern state courts and legislatures dealt with the immediate economic issues, in particular the validity of debts contracted before and during the war. When courts found some debts valid, they sought to determine the postwar value of such debts, some of which might have been contracted at various times in depreciating Confederate money. Despite variations from state to state, resolution of disputes was quick, with few long-term repercussions.

Other economic and social matters that came before postwar courts, legislatures, and constitutional conventions were far more important and long-lasting. Ranney discusses how the South usually restricted state government aid to business but allowed local government aid and supported state regulation of corporations and the enactment of general incorporation laws. He finds that different parts of the South and, more significantly, the North and the South dealt with these matters in similar ways, and there was general consistency in the attitudes of Reconstruction and Redemption legislatures and courts. Similarly, in matters concerning the extension of women’s rights, in particular those that gave women control over the property they brought to the marriage, southern states, sometimes in Reconstruction and Redemption constitutions and sometimes by legislative action, continued and extended the practice that had begun before the Civil War in many states, both North and South. Also, in reforms creating public funding of schools and the establishment of homestead exemptions, postwar practice was consistent throughout the South over time and differed little from that in the northern states.

In sum, therefore, if the Civil War brought revolutionary changes in the South, more conservative, traditional, and long-term changes continued in the midst of the revolution. “Southern judicial behavior,” Ranney explains, “was heavily influenced by a broader American judicial culture containing strong elements of nationalism and judicial conservatism” (27). This legal traditionalism, he concludes, helped reunite the sections and thereby played an important part in the rebuilding and reconstruction of the South.

What was really revolutionary about the defeat of the Confederacy, of course, was emancipation. But by describing this as a revolution in “race relations,” Ranney does not give full justice to the most significant and revolutionary changes in the post-emancipation South—changes in class and labor relations. Emancipation transformed blacks from property into free workers, and other economic changes that came after the war, if not as its direct result, transformed largely self-sufficient white yeomen farmers into commercial farmers—increasingly tenants rather than landowners—and propertyless workers. Interestingly enough, in this area legal traditionalism prevailed as well, although Ranney neither notes nor evaluates the continuity. Traditional laws of tenancy and cropping and of liens on crops remained and differed little in pattern if not in extent between North and South and between ante- and post-bellum South.

The revolution in “race relations” was another matter as Ranney makes clear in his summary of how post-bellum southern courts and legislatures and constitutions did away with or made a mockery of Reconstruction-era attempts to extend civil rights...