- A Legal History of the Civil War and Reconstruction: A Nation of Rights by Laura F. Edwards
In this important work of synthesis and interpretation, Laura Edwards argues that the Civil War transformed the American legal order. Transcending traditional scholarship that, beginning with the Dunning school, focused on the legal changes brought about by the war at the federal level, Edwards offers a more nuanced account that acknowledges that “legal change not only flowed from above, but also welled up from below” (6). Examining the legal history of both the Union and the Confederacy, while also incorporating the postwar West into her analysis, Edwards contends that the war changed the relationship between the people and their government. As the federal government expanded rights during Reconstruction, in Edwards’s telling, African Americans, women, and working people attempted to give their own meaning to the rights revolution, as they sought to expand the meanings of the Reconstruction Amendments into a broad new vision for society.
Edwards divides her study into two parts, the first of which deals with legal change during the war years. In these chapters, Edwards covers mostly familiar ground, as she first discusses how both the Union and the Confederacy attempted to create centralized governments to mobilize their populations and prosecute the war. She covers the essential topics with efficiency—conflicts over habeas corpus, economic policy, and draft laws, for example—while also subtly building the argument that she develops more fully in the second half of the book. In her chapter on the wartime Union, for example, Edwards claims that the ideology of the Republican Party “made it difficult to acknowledge the increasing distance between the interests of industrialists and the rest of the population” (39), while in her discussion of the Confederacy, bread riots and class conflict play a supporting role throughout the narrative. Wartime centralization, in other words, brought stirrings of popular protest that emerged more fully later in the century.
Edwards is at her best, though, in her chapter on emancipation, where she carefully and expertly explains the legal aspects of the Union’s evolving policy toward slavery. She shows how the actions of enslaved African Americans pushed white leaders to act—prompting General Benjamin Butler’s “contraband of war” policy and later President Abraham Lincoln’s Emancipation Proclamation—but she observes that such policies only freed individual slaves in certain circumstances without ending the institution of slavery. The wartime activism of African Americans not only [End Page 460] “forced both lawmakers and white Americans to confront” issues they hoped to avoid, but also helped forge a new relationship between blacks and the national government (82).
The second half of the book takes off from this point, as Edwards carries her analysis through the early twentieth century. After describing the different agendas for Reconstruction expressed by Lincoln, President Andrew Johnson, and congressional Republicans, she focuses on the passage of the Reconstruction Amendments and the development of notions of rights. Because Republicans believed that the war had changed the legal relationship between the federal government and the people, the Reconstruction Amendments affirmed the principles of civil and political equality among men. What the amendments did not do, according to Edwards, was undermine legally sanctioned inequality, which, she argues, persisted throughout the country, as women, African Americans, and Indians (in the West) remained subject to traditional law and custom. Notions of private property in particular, she argues, prevented the redistribution of land in the former Confederacy, while existing Supreme Court precedents governing U.S.-Indian relations precluded Indians from preserving their lands in the face of white expansion.
The paradox of Reconstruction—and the tension that Edwards explores throughout the second half of the book—is that although the federal government expanded rights, “it did not alter the logic that structured so much of American law” (149). Nevertheless, Edwards notes the parallels among workers, African Americans, women, and Indians, all of whom attempted to claim their individual rights but who...