The Rise and Fall of Transcendent Constitutionalism in the Civil War Era

Article — Volume 106, Issue 8

106 Va. L. Rev. 1631
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*Class of 1966 Research Professor of Law, University of Virginia School of Law. I thank Charles Barzun, Will Baude, Molly Brady, John Duffy, Risa Goluboff, Jessica Lowe, Ruth Mason, Charles McCurdy, and George Rutherglen for discussing the ideas in this Article and for comments on previous drafts. I also thank Wilson Miller and Daniele Celano for excellent research assistance and helpful comments along the way.Show More

In the aftermath of the Civil War, American intellectuals saw the war itself as a force of transcendent lawmaking. They viewed it as a historical catalyst that had forged the United States into a nation. In writing the Fourteenth Amendment, Congress sought to translate the war’s nationalistic spirit into text. But in the eyes of many contemporary thinkers, the war’s centripetal energy was a double-edged sword. It could create a nation out of disparate parts, but it was also potentially uncontainable, divorced from the regular lawmaking process and beyond the control of human actors. As a result, many American jurists feared that the war could result in the complete destruction of American federalism and the erection of a system based on unitary sovereignty.

After the Civil War, the Supreme Court significantly narrowed the revolutionary potential of the Fourteenth Amendment, as generations of legal scholars have noted. What scholars have failed to appreciate, however, is exactly what the Court meant to do in its controversial opinion in the Slaughterhouse Cases. In Slaughterhouse and other post-war cases, the Court sought to provide a counterforce against the forces of transcendent lawmaking, intending to preserve the fundamental distinction between state and federal authority in the United States, which the Justices feared might be entirely elided otherwise. To many Americans living in the aftermath of the Civil War, the Supreme Court’s decision to quash the radical potential of transcendent constitutionalism represented a welcome return to the ordinary operation of law in the United States.

Introduction

How did the Civil War transform American constitutionalism? Scholars have traditionally understood the Reconstruction Amendments (the Thirteenth, Fourteenth, and Fifteenth) as creating a new constitutional order in the United States.1.There is a vast literature on the Reconstruction Amendments’ transformative effect on American constitutional law, including Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (2d ed. 1997); Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986); Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014); Earl M. Maltz, Civil Rights, the Constitution, and Congress, 1863–1869 (1990); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992) [hereinafter Amar, Fourteenth Amendment]; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57 (1993) [hereinafter Aynes, Misreading John Bingham]; Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801 (2010); Randy E. Barnett, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, 3 J. Legal Analysis 165 (2011); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5 (1949); William Winslow Crosskey, Charles Fairman, “Legislative History,” and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954); Daniel A. Farber & John E. Muench, The Ideological Origins of the Fourteenth Amendment, 1 Const. Comment. 235 (1984); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385 (1992); Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases, 109 Yale L.J. 643 (2000); Mark A. Graber, Subtraction by Addition?: The Thirteenth and Fourteenth Amendments, 112 Colum. L. Rev. 1501 (2012); Lea VanderVelde, The Thirteenth Amendment of Our Aspirations, 38 U. Tol. L. Rev. 855 (2007); Bryan H. Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–67, 68 Ohio St. L.J. 1509 (2007); Rebecca E. Zietlow, James Ashley’s Thirteenth Amendment, 112 Colum. L. Rev. 1697 (2012).Show More Michael McConnell pointed to the “extraordinary character of the change” wrought by the amendments,2.See Michael W. McConnell, The Fourteenth Amendment: A Second American Revolution or the Logical Culmination of the Tradition?, 25 Loy. L.A. L. Rev. 1159, 1159 (1992); see also Michael W. McConnell, The Forgotten Constitutional Moment, 11 Const. Comment. 115 (1994) (arguing that the retrenchment following Reconstruction should lead legal scholars to view the period as significantly less revolutionary).Show More and Bruce Ackerman maintained that the amendments signified nothing less than a national “re-founding.”3.2 Bruce Ackerman, We the People: Transformations 198 (1998); see also Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, at xix-xx (2019) (conceptualizing the Reconstruction amendments as a “second founding”); Norman W. Spaulding, Constitution as Countermonument: Federalism, Reconstruction, and the Problem of Collective Memory, 103 Colum. L. Rev. 1992, 2045 (2003) (agreeing with Ackerman that Reconstruction constituted a re-founding in favor of national power).Show More While they disagree on the precise meaning of the amendments, scholars have tended to locate the source of revolutionary change in the act of adding the new amendments to the Constitution between 1865 and 1870.4.Scholarship that directly locates revolutionary change within the formal amendment process includes David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995, at 154–87 (1996) (detailing the amendments to the Constitution) and John R. Vile, Constitutional Change in the United States: A Comparative Study of the Role of Constitutional Amendments, Judicial Interpretations, and Legislative and Executive Actions (1994) (identifying formal amendments as the source of change in constitutional law). On the general importance of reliance on text in legal interpretation, see Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (new ed. 2018).Show More

Americans who had lived through the horrors of the Civil War had a different perspective—they considered the war itself to have altered the Constitution. For them, the war had been a world-churning, paradigm-shifting event. Civil War-era lawyers conceived of the post-war amendments as memorializing or ratifying a change that had already taken place through the brutal ordeal of war. The amendment process was their attempt to capture the war’s energy and to begin to spell out its meaning, but the words did not supply that energy. Nineteenth-century Americans identified the chaotic, bloody, unruly, and unfathomable experience of the war as the catalyst, the source of constitutional change. It ruptured their world and provided a transcendent source of lawmaking. In their view, the war’s scope and its ultimate significance were not quite within the realm of human control; God and forces of destiny directed the conflict more than they did. As they put their nation back together in the war’s aftermath, nineteenth-century Americans had to try to fathom its meaning.

This Article examines contemporaries’ understanding of the war as a supernatural force that remade the fundamental law of the nation, a phenomenon that I call “transcendent constitutionalism.” I employ the term “transcendent constitutionalism” for three distinct reasons. First, I focus on informal, unwritten changes to the Constitution, which stemmed from the extraordinary power of war rather than more ordinary methods of constitutional interpretation. Here I seek to broaden our conception of the non-formal means of constitutional change, which include the political process, grassroots social movements, and even mob violence.5.On various mechanisms of non-formal constitutional change, see generally Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004) (detailing the interaction of legal and social factors in ending de jure segregation); Tomiko Brown-Nagin, Courage To Dissent: Atlanta and the Long History of the Civil Rights Movement (2011) (examining the role of local communities as agents of legal change within the civil rights movement); John Phillip Reid, In a Defensive Rage: The Uses of the Mob, the Justification in Law, and the Coming of the American Revolution, 49 N.Y.U. L. Rev. 1043 (1974) (exploring the phenomenon of mob violence as an instrument of constitutional change in the Revolutionary period).Show More By including war within the ambit of constitutionalism, I intend to expand the scope of what we view as agents of constitutional transformation. Second, because I mean to describe the world as nineteenth-century Americans conceived of it, I have chosen not to rely on the phrases “unwritten constitutionalism” or “popular constitutionalism,” which invoke a modern view of how we understand history and extra-textual sources to have shaped our constitutional traditions.6.Scholars who have developed theories of how historical change shapes modern American constitutionalism include Ackerman, supra note 3; Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By (2012); Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004); Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Sanford Levinson ed., 1995); David A. Strauss, The Living Constitution 120–32 (2010); David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457 (2001) [hereinafter Strauss, Irrelevance]. A number of scholars have also examined unwritten constitutionalism’s intersection with the original understanding of the Constitution, including Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843 (1978); Jed Rubenfeld, The New Unwritten Constitution, 51 Duke L.J. 289 (2001); Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127 (1987); Lawrence B. Solum, Originalism and the Unwritten Constitution, 2013 U. Ill. L. Rev. 1935.Show More Third, I also want to convey a sense of the otherworldly or the mystical in describing this mode of thinking.7.Cf. Mark A. Noll, The Civil War as a Theological Crisis (2006) (discussing the theological crisis that grew out of the American Civil War); George C. Rable, God’s Almost Chosen Peoples: A Religious History of the American Civil War (2010) (discussing Americans’ understanding of the religious forces at work during the Civil War).Show More Americans focused on the war itself as a source of lawmaking, and they also considered war to be a force that was outside of human control. They were unsure about whether it could be directed. This way of understanding constitutional change may sound unfamiliar, and because none of us has lived through the world-shattering experience of the Civil War, it is difficult to comprehend the turmoil the war’s survivors experienced.

The transcendent constitutionalism that followed Union victory in the Civil War caused a number of momentous shifts in the United States, but this Article will focus on one in particular: the change wrought to nationhood and federalism.8.The other huge, looming issue that seemed to be settled by the war was the end of slavery in the United States.Show More Federal structure necessarily intersected with other very important issues: the war’s impact on race and slavery, and the federal government’s relationship with the citizen, particularly in terms of the rights guaranteed to individuals as a matter of federal constitutional law. In the eyes of many legal thinkers, the war had altered the nature of sovereignty in the United States. For decades, Americans had wrangled over whether sovereignty was held primarily in the states, which could exit the federal arrangement at will, or whether the people as a whole were the constituent sovereign and had created an unbreakable Union at the Founding.

The Civil War’s survivors interpreted Northern victory as a triumph over the forces of secessionist disintegration. It functioned as a confirmation (or an establishment) of the basic integrity and existence of the United States as a nation.9.For a discussion of this basic assumption in the scholarly literature, see Cynthia Nicoletti, The American Civil War as a Trial by Battle, 28 Law & Hist. Rev. 71, 73–74 (2010) [hereinafter Nicoletti, Trial by Battle]. For a deeper analysis of how, precisely, the war established this maxim, see id. at 76 (arguing that “American jurists and other intellectuals adopted the language of the medieval legal custom of trial by battle” as a way of rationalizing the war’s determination of secession’s illegitimacy); Spaulding, supra note 3, at 2038, 2040–42 (arguing that the war itself functioned as a mechanism of legal adjudication); Strauss, Irrelevance, supra note 6, at 1482–85 (arguing that the Reconstruction Amendments did not alter the Constitution so much as societal change did). Strauss also discusses the war’s settlement of the permanence of the Union, although he notes that no formal amendment recognized this. Id. at 1486.Show More Former Confederate Congressman Clement Clay admitted to President Andrew Johnson that:

[T]he subordination of the States & supremacy of the General Government has been established in the Court of last resort—the field of battle . . . . The established theory now is, that the citizen owes his highest & first allegiance to the Genl. Govt. Such is the fact & none should dispute it.10 10.Letter from Clement C. Clay, Jr., to Andrew Johnson (Nov. 23, 1865), in 9 Papers of Andrew Johnson 420, 421 (Paul H. Bergeron ed., 1991).Show More

The war’s energy was, however, a double-edged sword. It could forge a nation out of a number of disparate parts, but it could also, as many American lawyers feared, destroy federalism in the process, ushering in what contemporaries (and the Founders) termed “consolidation.”11 11.The Federalist No. 32, at 155 (Alexander Hamilton) (Ian Shapiro ed., 2009); id. No. 45, at 238 (James Madison).Show More The war could provide an impetus for reform. But it could also overcorrect and kill the states entirely.

The war was unlike the formal amendment process in that it was not deliberative. It was not the product of thought and consideration. Instead, it was savage and unpredictable. Once unleashed, the Civil War’s progress was a force that could not be contained by human efforts. As a result, a number of American intellectuals (lawyers, historians, political theorists, and journalists) worried that the basic federal structure of the original Constitution would be altogether lost in the aftermath of the war. Some thinkers welcomed the chaos, which could enable Americans to slough off their old, irrational attachment to the tradition of localism. Many others regarded it with dread. One lawyer compared the Civil War to “the deadly heat of fever, which consumes without remedy the vitals of the Constitution.”12 12.Charles O’Conor, Opinion, Age Has Not Softened Him Nor Taught Him Manners or Charity—He Holds that the Republic Has Been Dead Since M’Dowell Moved on Richmond, N.Y. Times, Dec. 6, 1876, at 1.Show More The war would leave America a unitary state, and it was not clear that intrepid human energy could prevent a slide into consolidation.

During Reconstruction, Congress sought to capture the transcendent energy of the war and infuse it into the written Constitution. In the process of translating the war’s energy into the written text of the Fourteenth Amendment, Congress sought to establish two principles.13 13.U.S. Const. amend. XIV.Show More First was the confirmation of the primacy of the nation rather than the states. The sovereignty of the nation was, the war made clear, derived from the people directly and not from the states as a conduit for the people. The second—the protection of civil rights—followed from the first.14 14.See infra note 183 and accompanying text.Show More As Congressional Republicans argued, the primacy of national sovereignty meant that the citizen’s principal relationship was with the national government rather than with the states. Correspondingly, the federal government was now to be the guarantor of the citizen’s rights, bound to protect citizens even against interference by their own state governments.

Questions about the war’s impact on American federalism, as partially, but not wholly, expressed in the new constitutional amendments, eventually found their way to the Supreme Court. Rereading the Court’s opinions, and particularly, the Slaughterhouse Cases,15 15.83 U.S. (16 Wall.) 36 (1873).Show More with an eye toward claims of transcendent constitutional change is revealing. In a number of cases, the Court explicitly addressed the premise that the war, rather than the ratification of the Fourteenth Amendment, had remade the vitals of the Constitution—and rejected it. Instead, the Court opted to rely on the text of the Constitution and on longstanding—and distinctly non-radical—notions of federal structure. The Court would supply the counterforce against consolidation that the most extreme post-war commentators had desired. In numerous ways, the Court took on the role of policing the boundaries of federal and state power and arresting the prospect of consolidation.

By the time of Slaughterhouse in 1873, the Court’s role in limiting the centripetal energy unleashed by the war generally met with the approval of most American legal commentators, who were anxious to find normalcy and achieve balance. As one legal commentator enthused, the Justices “all shrank from the hideous features of the apparition [of consolidation] when [the details] were fully disclosed. Not one was found willing to abolish the States . . . .”16 16.Robert Ould, The Last Three Amendments to the Federal Constitution, 2 Va. L.J. 385, 392 (1878).Show More Americans who had wearied of the war’s revolutionary spirit endorsed the Court’s rejection of transcendent constitutionalism and the radical consequences that accompanied it.

The Civil War, violent and messy, looms large in the popular understanding of how American constitutionalism has changed over time, but not in the dominant scholarly narrative, which focuses instead on the formal and intentional act of ratifying the Reconstruction Amendments. This is not to say that previous scholars have been uninterested in investigating the broader political and legal culture surrounding the adoption of the amendments,17 17.See David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888,at 400–02 (1985); Charles Fairman, Reconstruction and Reunion, 1864–88: Part One, in 6 The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States 1, 1118, 1127–28, 1298–1300 (Paul A. Freund ed., 1971); Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, at 256–57 (1988); Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution, at xv–xvi (1973); Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866–1876, at 2, 4–6 (2005); Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869, at 22–23 (1974); William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 8–9 (1988); Michael A. Ross, Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court During the Civil War Era, at xv–xvii (2003); Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment 2–3 (2001); Michael Les Benedict, Salmon P. Chase and Constitutional Politics, 22 Law & Soc. Inquiry 459, 476–78, 490 (1997) (reviewing John Niven, Salmon P. Chase: A Biography (1995)); Robert J. Kaczorowski, To Begin the Nation Anew: Congress, Citizenship, and Civil Rights After the Civil War, 92 Am. Hist. Rev. 45, 48–53 (1987).Show More but they have seldom taken account of the war itself as a source of lawmaking power.18 18.There is some discussion of this topic in Spaulding, supra note 3, at 2040, and Strauss, Irrelevance, supra note 6, at 1479–80. My own work has explored it in other contexts, such as how the war settled the question of secession’s constitutionality and the availability of treason charges against the perpetrators of an unsuccessful rebellion. See Cynthia Nicoletti, Trial by Battle, supra note 9, at 74–76; Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis 84–86 (2017) [hereinafter Nicoletti, Secession on Trial].Show More Thinking only about the Constitution as the product of deliberate human choices by politicians and lawmakers misses a key part of Civil War-era discussion about the ways that American life—and the U.S. Constitution—could be changed.

Nineteenth-century American intellectuals understood the course of history and the abstract forces behind it in a fatalistic way that is unfamiliar to modern American legal scholars. This Article recreates a largely overlooked intellectual debate over the nature of constitutionalism in the aftermath of the Civil War by exploring a broad array of previously neglected sources that range far beyond Congress and the Supreme Court. Nineteenth-century American jurists understood the Constitution to be both the written product of formal deliberation and the result of the decidedly non-deliberative, explosive power of transcendent lawmaking. They feared that the war’s energy could destroy the states the same way it had destroyed secession, thus resulting in the total annihilation of American federalism. Reconstructing the Union after the Civil War involved a more difficult task than scholars have previously realized, because of the ease of veering, without conscious choice, into consolidation.

I seek to situate the Supreme Court’s much maligned Slaughterhouse Cases against this larger intellectual backdrop and thus offer a way to make sense of the Court’s seemingly indefensible decision to twist the language of the Privileges or Immunities Clause beyond recognition.19 19.See infra notes 283–88 and accompanying text on Slaughterhouse’s poor reputation among jurists and academics.Show More Although Slaughterhouse itself did not undercut the federal government’s role in securing racial equality in the United States, the decision signaled the Supreme Court’s subsequent unwillingness to invalidate schemes of racial discrimination in the United States until the mid-twentieth century. In cases like Cruikshank v. United States and the Civil Rights Cases, the Court built on Slaughterhouse’s firm distinction between the state and federal aspects of citizenship in crafting the state action doctrine, which put most forms of racial discrimination beyond the reach of federal regulatory power.20 20.See infra Section III.C for more on the connection between Slaughterhouse and later cases undercutting the federal government’s power in the realm of civil rights, based on an expansive reading of the state action doctrine.Show More

Certainly the criticism Slaughterhouse has received for both its shaky logic and the limitations it imposed on federal power has been well deserved, but scholars have also missed a crucial aspect of what the Slaughterhouse Court sought to achieve in the aftermath of the Civil War. Slaughterhouse reflected the fact that white northerners, including the elites in the legal community, were increasingly uninterested in using federal power to protect Black Americans from violence and discrimination.21 21.This Article focuses on the views of lawyers, judges, legislators, and other public commentators on constitutional law in the aftermath of the Civil War, which necessarily means that it channels the voices of the elite class. For more on the historical exclusiveness of the American bar in both racial and class terms, see Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer 12–26 (2012) (discussing Black lawyers in the nineteenth century) and Robert W. Gordon, “The Ideal and the Actual in the Law”: Fantasies and Practices of New York City Lawyers, 1870–1910, in The New High Priests: Lawyers in Post-Civil War America 51, 51–74 (Gerard W. Gawalt ed., 1984) (discussing class prejudice in the elite legal profession of the late nineteenth century).There is a large literature on the racial motivations and implications of the Reconstruction-era Supreme Court’s decisions. See, e.g., Eric Foner, supra note 17, at 530, and Michael Les Benedict, Preserving Federalism: Reconstruction and the Waite Court, 1978 Sup. Ct. Rev. 39, 60–62 [hereinafter Benedict, Preserving Federalism] (both highlighting the Supreme Court’s crucial role in limiting the federal government’s power to address racial inequality in the post-Reconstruction United States).Show More But the widespread acclaim with which the mainstream legal community greeted the decision in the 1870s and 1880s was also the product of another aspect of post-war national conservatism.22 22.Bryan H. Wildenthal’s article, Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867–1873, 18 J. Contemp. Legal Issues 153, 221–29 (2009), comes the closest to examining public discussion around the Fourteenth Amendment, but ends in 1873 with the Slaughterhouse decision. See infra notes 283–346 and accompanying text for discussion of reactions to Slaughterhouse.Show More As Reconstruction waned, the American legal community sought to shrug off the explosive potential of transcendent constitutionalism along with the radical promise of racial egalitarianism that had seemed possible at the moment of Union victory in the Civil War.

The Article proceeds in four parts. Part I begins by reconstructing nineteenth-century Americans’ conception of war as a means of constitutional change and their understanding of the effect that Union victory would have on the American federal arrangement. American intellectuals were conflicted about the legitimacy of using violence as a source of law, but they nonetheless recognized the explosive power of the Civil War to reshape the course of history. They were also unsure about what the war’s ultimate significance might be. They feared that the nationalism unleashed by the war would result in consolidation—or the complete eradication of federalism in favor of a unitary state.

Part II discusses the relationship between ideas about transcendent constitutionalism, fashioned by the war itself, and the formal changes to the Constitution through the ratification of the Fourteenth Amendment. In debating the Amendment and the Civil Rights Bill in 1866, congressmen consistently revealed that they understood the Civil War to have altered the national arrangement in fundamental ways. The new Fourteenth Amendment sought to capture that change by memorializing the primacy of national sovereignty. In addition, Congress connected the Amendment’s protections for individual rights, along with the federal power to protect those rights from state incursion, to the new conception of national sovereignty. This understanding was informed by natural law.

The Supreme Court’s role in checking the excesses baked into concepts of transcendent constitutionalism is explored in Part III. The danger of consolidation loomed large, and the Supreme Court saw its role as policing the balance between federal and state power, a necessary function in the post-war period. The most notable decision in this regard was the (now) much-maligned Slaughterhouse Cases, in which the Court indicated its willingness to cut down on the radical centralizing potential of the Fourteenth Amendment.

Finally, Part IV explores reactions to the Supreme Court’s post-war federalism jurisprudence, and particularly, the Slaughterhouse Cases. For the most part, commentators welcomed the Supreme Court’s influence in preventing consolidation and checking the federal government’s authority. The wider American legal community saw the Court’s actions as returning American constitutionalism back to its ordinary state.

  1. * Class of 1966 Research Professor of Law, University of Virginia School of Law. I thank Charles Barzun, Will Baude, Molly Brady, John Duffy, Risa Goluboff, Jessica Lowe, Ruth Mason, Charles McCurdy, and George Rutherglen for discussing the ideas in this Article and for comments on previous drafts. I also thank Wilson Miller and Daniele Celano for excellent research assistance and helpful comments along the way.
  2. There is a vast literature on the Reconstruction Amendments’ transformative effect on American constitutional law, including Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (2d ed. 1997); Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986); Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014); Earl M. Maltz, Civil Rights, the Constitution, and Congress, 1863–1869 (1990); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992) [hereinafter Amar, Fourteenth Amendment]; Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57 (1993) [hereinafter Aynes, Misreading John Bingham]; Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801 (2010); Randy E. Barnett, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, 3 J. Legal Analysis 165 (2011); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5 (1949); William Winslow Crosskey, Charles Fairman, “Legislative History,” and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1 (1954); Daniel A. Farber & John E. Muench, The Ideological Origins of the Fourteenth Amendment, 1 Const. Comment. 235 (1984); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385 (1992); Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases, 109 Yale L.J. 643 (2000); Mark A. Graber, Subtraction by Addition?: The Thirteenth and Fourteenth Amendments, 112 Colum. L. Rev. 1501 (2012); Lea VanderVelde, The Thirteenth Amendment of Our Aspirations, 38 U. Tol. L. Rev. 855 (2007); Bryan H. Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–67, 68 Ohio St. L.J. 1509 (2007); Rebecca E. Zietlow, James Ashley’s Thirteenth Amendment, 112 Colum. L. Rev. 1697 (2012).
  3. See Michael W. McConnell, The Fourteenth Amendment: A Second American Revolution or the Logical Culmination of the Tradition?, 25 Loy. L.A. L. Rev. 1159, 1159 (1992); see also Michael W. McConnell, The Forgotten Constitutional Moment, 11 Const. Comment. 115 (1994) (arguing that the retrenchment following Reconstruction should lead legal scholars to view the period as significantly less revolutionary).
  4. 2 Bruce Ackerman, We the People: Transformations 198 (1998); see also Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, at xix-xx (2019) (conceptualizing the Reconstruction amendments as a “second founding”); Norman W. Spaulding, Constitution as Countermonument: Federalism, Reconstruction, and the Problem of Collective Memory, 103 Colum. L. Rev. 1992, 2045 (2003) (agreeing with Ackerman that Reconstruction constituted a re-founding in favor of national power).
  5. Scholarship that directly locates revolutionary change within the formal amendment process includes David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995, at 154–87 (1996) (detailing the amendments to the Constitution) and John R. Vile, Constitutional Change in the United States: A Comparative Study of the Role of Constitutional Amendments, Judicial Interpretations, and Legislative and Executive Actions (1994) (identifying formal amendments as the source of change in constitutional law). On the general importance of reliance on text in legal interpretation, see Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (new ed. 2018).
  6. On various mechanisms of non-formal constitutional change, see generally Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004) (detailing the interaction of legal and social factors in ending de jure segregation); Tomiko Brown-Nagin, Courage To Dissent: Atlanta and the Long History of the Civil Rights Movement (2011) (examining the role of local communities as agents of legal change within the civil rights movement); John Phillip Reid, In a Defensive Rage: The Uses of the Mob, the Justification in Law, and the Coming of the American Revolution, 49 N.Y.U. L. Rev. 1043 (1974) (exploring the phenomenon of mob violence as an instrument of constitutional change in the Revolutionary period).
  7. Scholars who have developed theories of how historical change shapes modern American constitutionalism include Ackerman, supra note 3; Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By (2012); Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004); Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Sanford Levinson ed., 1995); David A. Strauss, The Living Constitution 120–32 (2010); David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457 (2001) [hereinafter Strauss, Irrelevance]. A number of scholars have also examined unwritten constitutionalism’s intersection with the original understanding of the Constitution, including Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843 (1978); Jed Rubenfeld, The New Unwritten Constitution, 51 Duke L.J. 289 (2001); Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127 (1987); Lawrence B. Solum, Originalism and the Unwritten Constitution, 2013 U. Ill. L. Rev. 1935.
  8. Cf. Mark A. Noll, The Civil War as a Theological Crisis (2006) (discussing the theological crisis that grew out of the American Civil War); George C. Rable, God’s Almost Chosen Peoples: A Religious History of the American Civil War (2010) (discussing Americans’ understanding of the religious forces at work during the Civil War).
  9. The other huge, looming issue that seemed to be settled by the war was the end of slavery in the United States.
  10. For a discussion of this basic assumption in the scholarly literature, see Cynthia Nicoletti, The American Civil War as a Trial by Battle, 28 Law & Hist. Rev. 71, 73–74 (2010) [hereinafter Nicoletti, Trial by Battle]. For a deeper analysis of how, precisely, the war established this maxim, see id. at 76 (arguing that “American jurists and other intellectuals adopted the language of the medieval legal custom of trial by battle” as a way of rationalizing the war’s determination of secession’s illegitimacy); Spaulding, supra note 3, at 2038, 2040–42 (arguing that the war itself functioned as a mechanism of legal adjudication); Strauss, Irrelevance, supra note 6, at 1482–85 (arguing that the Reconstruction Amendments did not alter the Constitution so much as societal change did). Strauss also discusses the war’s settlement of the permanence of the Union, although he notes that no formal amendment recognized this. Id. at 1486.
  11. Letter from Clement C. Clay, Jr., to Andrew Johnson (Nov. 23, 1865), in 9 Papers of Andrew Johnson 420, 421 (Paul H. Bergeron ed., 1991).
  12. The Federalist No. 32, at 155 (Alexander Hamilton) (Ian Shapiro ed., 2009); id. No. 45, at 238 (James Madison).
  13. Charles O’Conor, Opinion, Age Has Not Softened Him Nor Taught Him Manners or Charity—He Holds that the Republic Has Been Dead Since M’Dowell Moved on Richmond, N.Y. Times, Dec. 6, 1876, at 1.
  14. U.S. Const. amend. XIV.
  15. See infra note 183 and accompanying text.
  16. 83 U.S. (16 Wall.) 36 (1873).
  17. Robert Ould, The Last Three Amendments to the Federal Constitution, 2 Va. L.J. 385, 392 (1878).
  18. See David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888, at 400–02 (1985); Charles Fairman, Reconstruction and Reunion, 1864–88: Part One, in 6 The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States 1, 1118, 1127–28, 1298–1300 (Paul A. Freund ed., 1971); Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, at 256–57 (1988); Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution, at xv–xvi (1973); Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866–1876, at 2, 4–6 (2005); Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869, at 22–23 (1974); William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 8–9 (1988); Michael A. Ross, Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court During the Civil War Era, at xv–xvii (2003); Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment 2–3 (2001); Michael Les Benedict, Salmon P. Chase and Constitutional Politics, 22 Law & Soc. Inquiry 459, 476–78, 490 (1997) (reviewing John Niven, Salmon P. Chase: A Biography (1995)); Robert J. Kaczorowski, To Begin the Nation Anew: Congress, Citizenship, and Civil Rights After the Civil War, 92 Am. Hist. Rev. 45, 48–53 (1987).
  19. There is some discussion of this topic in Spaulding, supra note 3, at 2040, and Strauss, Irrelevance, supra note 6, at 1479–80. My own work has explored it in other contexts, such as how the war settled the question of secession’s constitutionality and the availability of treason charges against the perpetrators of an unsuccessful rebellion. See Cynthia Nicoletti, Trial by Battle, supra note 9, at 74–76; Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis 84–86 (2017) [hereinafter Nicoletti, Secession on Trial].
  20. See infra notes 283–88 and accompanying text on Slaughterhouse’s poor reputation among jurists and academics.
  21. See infra Section III.C for more on the connection between Slaughterhouse and later cases undercutting the federal government’s power in the realm of civil rights, based on an expansive reading of the state action doctrine.
  22. This Article focuses on the views of lawyers, judges, legislators, and other public commentators on constitutional law in the aftermath of the Civil War, which necessarily means that it channels the voices of the elite class. For more on the historical exclusiveness of the American bar in both racial and class terms, see Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer 12–26 (2012) (discussing Black lawyers in the nineteenth century) and Robert W. Gordon, “The Ideal and the Actual in the Law”: Fantasies and Practices of New York City Lawyers, 1870–1910, in The New High Priests: Lawyers in Post-Civil War America 51, 51–74 (Gerard W. Gawalt ed., 1984) (discussing class prejudice in the elite legal profession of the late nineteenth century).

    There is a large literature on the racial motivations and implications of the Reconstruction-era Supreme Court’s decisions. See, e.g., Eric Foner, supra note 17, at 530, and Michael Les Benedict, Preserving Federalism: Reconstruction and the Waite Court, 1978 Sup. Ct. Rev. 39, 60–62 [hereinafter Benedict, Preserving Federalism] (both highlighting the Supreme Court’s crucial role in limiting the federal government’s power to address racial inequality in the post-Reconstruction United States).

  23. Bryan H. Wildenthal’s article, Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867–1873, 18 J. Contemp. Legal Issues 153, 221–29 (2009), comes the closest to examining public discussion around the Fourteenth Amendment, but ends in 1873 with the Slaughterhouse decision. See infra notes 283–346 and accompanying text for discussion of reactions to Slaughterhouse.

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