The Madisonian Constitution

2. Congress, the Supreme Court, and the Meaning of the Civil War Amendments

c h a p t e r t w o Congress, the Supreme Court, and the Meaning of the Civil War Amendments On the eve of the Civil War, Abraham Lincoln argued that states could not, as a matter of constitutional logic, secede from the Union.Yet the Constitution did not speciWcally address this question. And Lincoln himself insisted that much of the conflict threatening to tear the Union apart stemmed from questions that the Constitution did not explicitly answer:“no organic law can ever be framed with a pro­ vision speciWcally applicable to every question which may occur in practical ad­­ ministration. No foresight can anticipate, nor any document of reasonable length contain, express provisions for all possible questions.”1 Turning to the questions at hand,Lincoln illuminated this dilemma:“Shall fugitives from labor be surrendered by national or State authority? The Constitution does not expressly say. May Congress prohibit slavery in the Territories? The Constitution does not expressly say. must Congress protect slavery in the Territories? The Constitution does not ex­­ pressly say.”2 Such vexing questions would turn on particular constructions of constitutional authority and meaning.Arguing that his interpretation of the Constitution was the only coherent interpretation of the constitutional order, Lincoln rejected secession as inconsistent with the terms of the constitutional Union. Still, the war came. And it came over conflicting constitutional understandings that could no longer be contained within the Madisonian framework.3 Many of these questions were answered in the bloodshed that followed—and they were answered on Lincoln’s terms. If state secession was a disputed constitutional question prior to the Civil War,4 it was resoundingly answered by way of Lincoln’s Wrst inaugural address and his Gettysburg Address, perhaps the two most important acts of constitutional interpretation in our history.5 So, too, has Lincoln ’s constitutional vision framed the relationship between slavery and the Con-      The Madisonian Constitution stitution of 1787, closing oV earlier avenues of constitutional thought by pointing to the irreconcilable tension between slavery and the fundamental commitments of American constitutionalism as articulated in the Declaration of Independence.6 This chapter examines Lincoln and the Republican Congress’s attempt to construct constitutional authority in a manner that would make the Union they saved “forever worthy of the saving.”7 For the antislavery and free labor Republicans, this rested upon the Declaration of Independence’s promise of liberty and equality, which ultimately entailed the passage of the Fourteenth Amendment. By amending the Constitution, the Republicans sought to settle a bundle of constitutional questions that had vexed the American polity, giving their vision permanent constitutional authority by rooting it in constitutional text. This promise, however, was only partially realized. Viewed from the Madisonian lens, the Congress and the Court struggled over the Republicans’ attempt to solidify constitutional meaning and authority by way of the Civil War amendments . This debate was, at root, about the identity of the Constitution: How did these new amendments cohere with the Constitution? Were they revolutionary or transformative, or did they complete the Constitution? The construction of constitutional meaning by the diVerent branches was conflicted on this foundational question. Against the Republican vision, the Court and Democrats sought to conWne the reach of the Civil War amendments, situating them within the strands of antebellum constitutional thought that the Republicans sought to overturn.8 In this manner, the constitutional meaning of the Civil War amendments was limited. After an initial struggle, free labor ideas about liberty and equality triumphed in the latter half of the nineteenth century as applied to white males. These constitutional commitments were abandoned, however, when it came to the newly freed slaves.9 Rather than a grand synthesis of Founding and Republican con­ sti­ tu­ tion­ alism,10 Republican constitutional thought was entrenched in some areas and narrowed in others. Tragically, this tension also reveals the disharmonic gap between American constitutional ideals and American constitutional practice. The constitutional text pointed to the aspirational qualities of liberty and equal protection, but the polity seemed determined to retreat from such a view as it applied to African Americans.11 The Civil War Amendments: The Centrality of Countervailing Power The Civil War amendments oVer a unique prism through which we may view the Madisonian logic of countervailing power. These amendments explicitly invite The Civil War Amendments      congressional enforcement of constitutional meaning. Section 5 of the Fourteenth Amendment reads:“The Congress shall have power...