A Documentary History of the American Civil War. Vol. 4: Judicial Decisions, 1867–1896 ed. by Thomas C. Mackey (review)

Now that so much historical material is becoming available online, we need to consider the rationale for the printed documentary volume. After all, the many documents that can be downloaded have changed how many of us work. Only a printed collection that is well annotated by a savvy editor can justify itself these days, and this is a tall order. This volume, the fourth in a series, offers judicial opinions from courts of appeal in their entirety with short introductions to each. Its editor, Thomas C. Mackey, argues that the series provides “access to the most important (and sometimes overlooked and difficult to locate) public policy and judicial decisions” of the era (pp. xi–xii). Mackey feels that historians have been neglecting the political, legal, and constitutional history of the Civil War period in favor of social and cultural history, and he hopes that these volumes will restore the balance. The book includes a list of suggested readings highlighting many important books on the constitutional history of the Civil War and Reconstruction that readers will find useful. Mackey’s book targets historians of the mid-nineteenth century, legal scholars, undergraduate students, and the serious Civil War buffs. The book is a handsome volume for those who like their document collections bound, and it contains all of the important Supreme Court opinions of the period. However, the book has drawbacks for all of its potential audiences except the history buffs.

Although it is true that the last few decades have been dominated by wonderful social histories of the Civil War (leaving legal scholars feeling a bit unloved), if there are any judicial opinions that are well known, well studied, and readily available, it is the judicial opinions of the appellate courts, especially of the U.S. Supreme Court whose decisions make up eighteen of the twenty decisions reprinted here. And a reprint is a problem for legal scholars because the convention is to reference any quotation from a state or federal judicial decision by using the page numbers of the original, printed court reporters. Using anything else in a footnote would be considered odd, if not unprofessional. Law professors rely on the Westlaw database, while college professors and students use the LexisNexis database. For this reason, this collection is suitable only for those outside academic and legal circles.

In classes, law professors and some college teachers assign casebooks that are usually organized thematically and then chronologically within those themes. This volume is strictly chronological, which means that it may go from a case asking whether the Thirteenth and Fourteenth Amendments ended racial segregation in public accommodations like a steamship or railroad, to a voting rights case, back to a public accommodations case, and on to a racial terrorism case, and so on. The introductions draw attention to how these cases are related, but the chronological organization makes it harder for readers to follow the legal issues.

Casebooks often offer selections only from judicial opinions, which can be very long and technical, with extensive commentary by the author; they sometimes offer a host of accompanying documents to provide historical and legal context. Thus their value is in their editing and commentary. For example, a good casebook covering this era might offer something from Bradwell v. the State of Illinois (1872), where the Supreme Court denied that the Fourteenth Amendment’s privileges and immunities clause protected Myra Bradwell’s claim to admission to the state bar under Illinois law. Mackey’s volume offers Bradwell, and his introduction to the decision draws attention to Justice Joseph P. Bradley’s concurrence proclaiming that “the law of the Creator” declared a woman should be wife and mother only (p. 455). True enough, but the introduction does not acknowledge that Bradwell was a renowned legal editor or that the Illinois...