Judicial Power and Reconstruction Politics (review)

362civil war history tude toward the former Confederates and lessening die harsh effects of Reconstruction in Texas. While sometimes at a disadvantage because of excessive drinking, a vitriolic tongue, and an ungovernable temper, Hamilton still influenced many decisions concerning important problems facing Texans. By the Constitution of 1866 he forced them to disavow the right of secession, end slavery, and repudiate the Civil War debt of Texas. In 1876, as associate justice of die state supreme court, he ruled on "explosive" issues relating to former slaves, property rights, and administration of estates. The next year he helped frame a new state constitution and in 1869 split with E. J. Davis and die Radical Republicans over Negro suffrage , thereby receiving an endorsement for governor from such local Democratic leaders as John H. Reagan and O. M. Roberts. Although objectively written and obviously well-researched, the Hamilton biography by John L. Waller, former chairman of the history department and graduate dean at die University of Texas at El Paso, is somewhat disappointing. Too often die author weakens his statements by such phrases as "may," "possibly," "must have been," "appears likely," and "virtually certain." Surely, after such extensive investigation, he could have been more positive regarding the thinking of Hamilton and, like many biographers, could have "gotten inside the man." Yet at times Waller has made some statement of fact without adequate explanation. For instance, he comments that Hamilton switched from a Radical to a Moderate Republican position but offers no deep insight concerning the thought processes which brought about this change. And surprisingly there is little discussion regarding Morgan Hamilton, the brother who sided for a time with E. J. Davis. Despite diese limitations. Colossal Hamilton of Texas does present much interesting information about one of the most important men of the era. Ben Procter Texas Christian University Judicial Power and Reconstruction Politics. By Stanley I. Kutler. (Chicago : University of Chicago Press, 1968. Pp. ix, 178. $5.95.) Professor Kutler's study of the Supreme Court during Reconstruction deserves serious attention. It is a work which adds to the emerging recognition that Reconstruction was something vastly more interesting than a fight between malicious congressional radicals and noble defenders of the Constitution. Congressmen of all opinions respected judicial institutions. Judges understood congressional prerogatives. Kutler's examination of these fundamental facts provides new understanding of die complexities of Reconstruction and suggests the need book reviews363 for a reversal of the traditional picture of Congress at war with the Court. The Republican threat to the Supreme Court in those years has been "grossly exaggerated," Kutler says. By expanding the jurisdiction of the courts, legislators demonstrated "a healthy, vital respect for the federal judiciary and its powers." Despite the hostile reaction to the Dred Scott decision the federal judiciary increased its influence during the disunion crisis and established the foundations of its late-nineteenth-century ascendancy. Kutler argues ably that there was no irrepressible conflict between Court and Congress over Reconstruction matters. Legislators did take alarm at some of the early decisions but only once did they act to diminish judicial influence. The Court did not seriously endanger the Reconstruction program of Congress. Justice Davis, author of the apparently threatening Milligan opinion, believed that the occupied South was not affected by it. In Texas v. White, the Court upheld the right of Congress to reconstruct the South. Surveying the encounter between the Court and Congress, Kutler accepts the judgment of Justice Field, "It came to be generally believed that it was the purpose of the Court ... to declare invalid most of the legislation relating to the Southern States . . . Nothing could have been more unjust and unfounded." Kutler's general thesis is skillfully presented. But irritating flaws mar this otherwise fine work. The book is too clearly a collection of articles. It should have been rewritten to save the reader from having to endure repetitious explanations of the basic facts of the Milligan and Yerger cases, for example. The author too frequently quotes historians and judges without clearly locating the source of the quotation. Surprisingly, Kutler can discuss the question of whether the authors of the Fourteenth Amendment intended to protect business enterprise and show no awareness...