A Legal History of the Civil War and Reconstruction: A Nation of Rights by Laura F. Edwards (review)

In A Legal History of the Civil War and Reconstruction: A Nation of Rights, Laura F. Edwards analyzes the legal transformations in rights brought about by the national experience of the Civil War and Reconstruction. She argues that this experience remade both individual rights and the federal government, linking individual rights to broader conceptions of social justice and raising the question of how responsible the federal government would be for defining and enforcing individual rights. While the answer reached by the end of the nineteenth century was pretty clearly “not much,” the question itself would later fuel the American rights revolution of the mid- to late twentieth century aptly analyzed by Charles R. Epp and others.

In the ocean of work concerning legal and constitutional change during the Civil War and Reconstruction, Edwards’s book contributes by placing the story of slavery and race into a broader context of transformation within the framework of individual rights. She accomplishes this by describing the antebellum legal order as one in which “the nation formed an ambiguous part of people’s identities as Americans” (p. 4). The crucible of the Civil War created national citizenship, not just through the words added to the Constitution by amendment but more fundamentally (and earlier) in the minds of citizens both of the Union and of the Confederacy. This new, robust, and direct relationship between nation and citizen both bolstered individual rights and generated expectations about the national government’s responsibility to support those rights.

Edwards largely agrees with the scholarly consensus that the national capacity to define and enforce rights was fairly emaciated by the close of the nineteenth century. She argues, however, that historians’ emphasis on southern policy makers’ largely successful efforts to recreate a white supremacist state on the ground does not recognize the long-term significance of the actual legal changes regarding individual rights and the effect of these changes on individuals’ thinking about what government owed them. Her argument looks not only to the top, analyzing constitutional, statutory, and doctrinal changes, but also to the ways that citizens seized the new opportunities they perceived as flowing from these changes. She also addresses the less-studied Confederate side of this dynamic, illustrating forcefully that, despite the short duration of the Confederacy’s attempt to achieve national sovereignty, its failed experiment animated a similar set of dynamics pushing toward transformations in how individual citizens understood their relationship with the national state.

Edwards does a good job of outlining the broader meaning of individual rights emerging from the constitutional crisis, but she is careful to qualify her argument, noting that the rights transformations of the twentieth century were not inevitable consequences of these changes but instead required deep movement work. She is also careful to note that the conceptual expansion of individual rights depended heavily on the maintenance of status distinctions that left many classes of citizens, including African Americans and women, outside the circle of potential protection. One element worthy of more attention is how state governments grappled with the new environment of rights. Emily J. Zackin’s Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (Princeton, 2013) has shown that a longer and more continuous process of state constitutional development established alternative frameworks for individual rights that, both prior to and after the Civil War and Reconstruction, influenced the trajectory that these rights claims took. Nonetheless, Edwards’s book thoughtfully intervenes in debates over the meaning of this period and provides a remarkably fresh perspective on this well-tilled ground.