Law and the Impact of the Civil War: A Review Essay

LAW AND THE IMPACT OF THE CIVIL WAR: A Review Essay Harold M. Hyman John Phillip Reto's Chief Justice: The Judicial World of Charles Doe1 speaks to the concerns of all who are interested m American constitutional history. These concerns have received best expression by Professor Paul Murphy, in an article which appeared five years ago in the American Historical Review. According to Murphy, it is now "time to reclaim" American constitutional history from die ills it has suffered during the past forty years. Murphy noted that during die nineteendi century Americans found consistently engaging die examination and analysis of constitutional questions. Notwithstanding die existence dien of what Ostrogorsld later described as the "weakened spring of government," when national and states' governments exercised relatively few functions, the production of constitutional history "tended to crowd out every other aspect of [written] history." Logic suggests that the degree of interest in constitutional history should have grown during the twentieth century, in rough response to governments' own increased growth. Unlike their counterparts of a century ago, national and state authorities now exercise numerous functions that frequendy, sometimes exacerbatingly, and often beneficiently , affect individuals and institutions. But, as Murphy noted, the curious fact is that since die end of World War I, with few exceptions , historians have abandoned constitutional inquiries. Other scholars , chiefly lawyers and political scientists, have picked up the drread. Most recendy—and bewilderingly—behaviorial and social scientists have spoken with increasing volume and quantitative impressiveness, if not clarity, about subjects once dear to historians. Why, Murphy asked, this curious drift away from constitutional history, which for so long charmed the profession? His answer: "Constitutional history's inability to attract adherents . . . must be a reflection , not on the subject matter, but on the nature of its approach, its 1JoIw Phillip Reid, Chief Justice: The Judicial World of Charles Doe. (Cambridge : Harvard University Press, 1967. Pp. 489. $12.50.) 51 52CIVIL WAR HISTORY style, and the materials that its practitioners have considered usable in its delineation."2 Professor Murphy's judgments stand up distressingly well to critical reflection. His insight is especially acute in that the study of constitutional history continues to suffer by reason of the approaches and materials which have dominated research and writing on constitutional subjects. Among the villains, lawyers' approaches and legal materials stand foremost. Their villainy becomes quickly and discouragingly apparent to anyone who is involved—as I am—in an effort to understand the effects of the Civil War and reconstruction on the Constitution. Beginning this effort, I assumed that mid-nineteenth century judges and lawyers formed the professional group most likely to have attended sensitively to die degree and nature of basic constitutional shifts which the war and its aftermath forced. Surely anyone today who is looking for information on changes in the law should first examine the law books and attend to what judges and lawyers said. They said a great deal, and few words failed to find ways into print. Shelves in law libraries sag under the accumulated case reports of the national courts and of the courts of three dozen states that participated in the war and imposed or endured reconstruction. University and law libraries have easily available complete runs of the major legal periodicals of the ISWs, 187(Zs, and 1880*s. The public papers (and frequendy die private ones as well) of Presidents, Cabinet heads, and congressmen are in print and in good supply; and for the states, of governors and legislators. In short, there is no scarcity of available sources even if research extends only to printed items. Further, with secession and Civil War, some leading lights of the law assumed diat diey and tiieir professional colleagues would serve as mentors to die distracted Union and to the unwashed masses. As example, Harvard's eminent Bussey Professor of Law, Emory Washbum , in January, 1861, told his graduating students that "In a busy, resdess community like ours, somebody has to do the thinking, whose s Murphy, 'Time to Reclaim: The Current Challenge of American Constitutional History," American Historical Review, LXIX (October, 1963), 64-66. Cf. Francis N. Thorpe, "What is a Constitutional History of the United States?," Annals of the...