How the Civil War Changed the Constitution
Disunion follows the Civil War as it unfolded.
The most
obvious constitutional result of the Civil War was the adoption of three
landmark constitutional amendments. The 13th ended slavery forever in
the United States, while the 14th made all persons born in the United
States (including the former slaves) citizens of the nation and
prohibited the states from denying anyone the privileges and immunities
of American citizenship, due process or law, or equal protection of the
law. Finally, the 15th Amendment, ratified in 1870, prohibited the
states from denying the franchise to anyone based on “race, color, or
previous condition of servitude.”
These amendments,
however, have their roots in the war itself, and in some ways can been
seen as formal acknowledgments of the way the war altered the
Constitution. Other changes came about without any amendments. Thus, the
war altered the Constitution in a variety of ways. A review of some of
them underscores how the Union that President Lincoln preserved was
fundamentally different — and better — than the Union he inherited when
he became president.
Slavery
The first and most obvious change involves slavery. The 13th Amendment was possible (as were the other two Civil War amendments) only because the war broke slavery’s stranglehold over politics and constitutional development. The Constitution of 1787 protected slavery at every turn. Although framers did not use the word “slavery” in the document, everyone at the Constitutional Convention understood the ways in which the new form of government protected slavery. Indeed, the word “slavery” was not used at the request of the Connecticut delegation and some other Northerners, who feared that their constituents would not ratify the Constitution if the word was in the document — not because the delegates objected to the word itself.
The first and most obvious change involves slavery. The 13th Amendment was possible (as were the other two Civil War amendments) only because the war broke slavery’s stranglehold over politics and constitutional development. The Constitution of 1787 protected slavery at every turn. Although framers did not use the word “slavery” in the document, everyone at the Constitutional Convention understood the ways in which the new form of government protected slavery. Indeed, the word “slavery” was not used at the request of the Connecticut delegation and some other Northerners, who feared that their constituents would not ratify the Constitution if the word was in the document — not because the delegates objected to the word itself.
It would take many
pages to review all the proslavery features of the Constitution, but
here are some of the most significant ones. The three-fifths clause gave
the South extra members of the House of Representatives, based on the
number of slaves in each state. Without these representatives, created
entirely by slavery, proslavery legislation like the Missouri Compromise
of 1820 and the Fugitive Slave Law of 1850 could never have been
passed.
Equally important,
votes in the Electoral College were based on the number of
representatives in the House, and so slavery gave the South a bonus in
electing the president. Without the electors created by slavery, the
slaveholding Thomas Jefferson would have lost the election of 1800 to
the non-slaveholding John Adams.
The “domestic
insurrections clause” guaranteed that federal troops would be used to
suppress slave rebellions, as they were in the Nat Turner Rebellion in
1831 and John Brown’s attempt to start a slave rebellion in 1859.
Finally, it took
two-thirds of Congress to send a constitutional amendment to the states,
and it took three-fourths of the states to ratify any amendment. Had
the 15 slave states all remained in the Union, to this day, in 2015, it
would be impossible to end slavery by constitutional amendment, since in
a 50-state union, it takes just 13 states to block an amendment.
The political power of
the slave states meant that the nation was always forced to protect
slavery. Thus the South in effect controlled politics from 1788 until
1861. Slave owners held the presidency for all but 12 years between 1788
and 1850. All of the two-term presidents were slave owners. Three
Northerners held the office from 1850 to 1860 — Fillmore, Pierce and
Buchanan – but all were proslavery and they bent over backward to
placate the South.
It took the Civil War
to break slavery’s stranglehold on politics and fundamentally alter the
nature of constitutional law and constitutional change.
The demise of slavery
began with slaves running away and the army freeing them. But the key
moment was the Emancipation Proclamation, which was the first important
executive order in American history. In order to destroy slavery — and
save the Union — Lincoln found new power for his office.
Secession and Nullification
Since the beginning of the nation, claims that states could nullify federal law or even secede had destabilized American politics and constitutional law. Sometimes Northerners made these claims, such as the disgruntled New Englanders who organized the Hartford Convention to oppose the War of 1812. But most claims of nullification came from the slave South. In 1798 Jefferson secretly wrote the “Kentucky Resolutions,” while his friend James Madison wrote the “Virginia Resolutions”; both asserted the right of the states to nullify federal law.
Since the beginning of the nation, claims that states could nullify federal law or even secede had destabilized American politics and constitutional law. Sometimes Northerners made these claims, such as the disgruntled New Englanders who organized the Hartford Convention to oppose the War of 1812. But most claims of nullification came from the slave South. In 1798 Jefferson secretly wrote the “Kentucky Resolutions,” while his friend James Madison wrote the “Virginia Resolutions”; both asserted the right of the states to nullify federal law.
From the earliest
debates over the Union, in the Second Continental Congress, until the
eve of the Civil War, numerous Southern politicians publicly advocated
secession if they did not get their way on issues involving slavery and
other issues. In 1832-33 South Carolina asserted the right to nullify
the federal tariff, and then officially (although mostly symbolically)
passed an ordinance to nullify the Force Law, which authorized the
president to use appropriate military or civil power to enforce federal
laws. At this time Georgia also brazenly declared it did not have to
abide by a federal treaty with the Cherokees. In 1850 Southerners held
two secession conventions, which went nowhere. In the debates over what
became of the Compromise of 1850, Senator John C. Calhoun of South
Carolina asserted the right of the South to block federal law.
Some Northern
opponents of slavery — most notably William Lloyd Garrison — argued for
Northern secession because they rightly understood that slavery
dominated the American government. But Garrison had few followers, and
even many of them never accepted his slogan of “No Union With
Slaveholders.” In the mid-1850s the Wisconsin Supreme Court declared the
Fugitive Slave Law unconstitutional, but when the Supreme Court upheld
the law the Wisconsin Court backed off.
In short,
nullification and secession were not new ideas in 1861, when 11 states
left the union, but had been part of the warp and weft of constitutional
debate since the founding. But the Civil War ended the discussion. The
question of the constitutionality of nullification or secession was
permanently settled by the “legal case” of Lee v. Grant, decided at
Appomattox Court House in April 1865. Grant had successfully defended
the Constitution and the idea of a perpetual Union. Secession lost, and
the United States won. The Supreme Court would weigh in on this in Texas
v. White (1869), holding that secession had never been legal and that
the state governments in the Confederacy lacked any legal authority.
Money and National Power
From the beginning of the nation there had been debates over whether the United States government could issue currency. Indeed, before the Civil War there was no national currency, only “bank notes” issued by private banks or state banks. For two periods (1791-1811 and 1816-1836) the federally chartered Bank of the United States circulated bank notes that functioned as a national currency. But Andrew Jackson vetoed the bank’s recharter on the grounds that it was unconstitutional, and for the next 25 years the nation’s economy was hampered by the lack of a stable, national currency.
From the beginning of the nation there had been debates over whether the United States government could issue currency. Indeed, before the Civil War there was no national currency, only “bank notes” issued by private banks or state banks. For two periods (1791-1811 and 1816-1836) the federally chartered Bank of the United States circulated bank notes that functioned as a national currency. But Andrew Jackson vetoed the bank’s recharter on the grounds that it was unconstitutional, and for the next 25 years the nation’s economy was hampered by the lack of a stable, national currency.
The war changed this,
too. In order to finance the war, Secretary of the Treasury Salmon P.
Chase developed a policy that led to the issuing of “greenbacks,” and
suddenly the constitutional issue was settled — not in court, but by the
exigency of the conflict. The Supreme Court was perplexed by this new
policy and after the war the court briefly declared that issuing
greenbacks was unconstitutional, but then quickly changed its mind.
Since then, the dollar has emerged as the most important currency in the
world. Although no longer backed by gold or silver, American currency
remains “the gold standard” for international transactions.
Military Law and Civilians
The war also created a new set of rules — laws that are still with us — for when and how military tribunals or martial law can apply to civilians. For example, when the war began there were no federal laws prohibiting acts of sabotage or for preventing civilians from forming armies to make war on the United States. Nor was there any national police force. Thus, President Lincoln suspended habeas corpus along the railroad route from Philadelphia to Washington and used the Army to arrest pro-Confederate terrorists, like John Merryman, who was tearing up railroads leading to Washington, D.C., and trying to organize a Confederate army in Maryland.
The war also created a new set of rules — laws that are still with us — for when and how military tribunals or martial law can apply to civilians. For example, when the war began there were no federal laws prohibiting acts of sabotage or for preventing civilians from forming armies to make war on the United States. Nor was there any national police force. Thus, President Lincoln suspended habeas corpus along the railroad route from Philadelphia to Washington and used the Army to arrest pro-Confederate terrorists, like John Merryman, who was tearing up railroads leading to Washington, D.C., and trying to organize a Confederate army in Maryland.
Again, this was a
matter of necessity, not ideology: Congress was not in session, and so
Lincoln acted on is own authority. Indeed, if Merryman had been
successful, members of Congress would have been unable to reach
Washington to meet. Congress later approved Lincoln’s actions and
authorized even more-massive suspensions of habeas corpus. Thus, the
Constitutional rule from the Civil War is that in a dire emergency the
government may act to restrain people to preserve public safety.
Related
Civil War Timeline
An unfolding history of the Civil War with photos and
articles from the Times archive and ongoing commentary from Disunion
contributors.
But what happens when
the immediate and pressing emergency is over? May the military still be
used to arrest and try civilians? The answer from the Civil War is an
emphatic no. During the war military officials in Indiana arrested
Lamdin P. Milligan for trying to organize a Confederate army in that
state. There was no combat in Indiana at the time, civil society was
smoothly functioning, and even Milligan’s allies were not blowing up
bridges or destroying railroads as Merryman had been doing.
Nevertheless, the Army tried Milligan and sentenced him to death. In
1866, in Ex parte Milligan, the Supreme Court ruled that the trial was
unconstitutional. The military might arrest Milligan because of the
emergency of the war (just as it had arrested Merryman), but the court
ruled that if the civilian courts were open, as they were in Indiana, it
was unconstitutional to try a civilian in a military court.
This has generally
been the law of the land ever since. In the aftermath of 9/11 the
Supreme Court upheld the rule that civilians (even terrorists in the
United States) could not be tried by military tribunals, but could only
be tried by civilian courts. The Justices relied on Milligan.
Racial Change and the Movement Toward Racial Equality
When the war began, federal law denied African-Americans virtually all constitutional rights. In Dred Scott v. Sandford, decided in 1857, Chief Justice Roger B. Taney ruled that blacks could never be citizens of the United States, even if they were treated as citizens in the states where they lived. This led to the oddity that blacks could vote for members of Congress and presidential electors in six states, and could hold office in those states and some others, but they were not citizens of the nation. Federal law nevertheless supported Taney’s rulings. For example, before the war blacks could not be members of state militias, serve in the national army, receive passports from the State Department, or be letter carriers for the post office.
When the war began, federal law denied African-Americans virtually all constitutional rights. In Dred Scott v. Sandford, decided in 1857, Chief Justice Roger B. Taney ruled that blacks could never be citizens of the United States, even if they were treated as citizens in the states where they lived. This led to the oddity that blacks could vote for members of Congress and presidential electors in six states, and could hold office in those states and some others, but they were not citizens of the nation. Federal law nevertheless supported Taney’s rulings. For example, before the war blacks could not be members of state militias, serve in the national army, receive passports from the State Department, or be letter carriers for the post office.
During the war all
this began to change. In 1862 Congress authorized the recruitment of
blacks in the national army and in state militias. While most black
soldiers were enlisted men, some served as noncommissioned officers, and
a few served as officers. Martin Delaney held the rank of major. Just
as striking, Eli Parker, a member of the Seneca nation, served on
Ulysses S. Grant’s personal staff as a lieutenant colonel and was
promoted to brevet brigadier general at the very end of the war.
The war also broke
down racial and ethnic/religious taboos and attitudes. Abraham Lincoln
became the first president to meet with blacks, and in the case of
Frederick Douglass, seek out their advice. In 1864 and 1865 Congress
gave charters to street railway companies that required that there be no
discrimination in seating. Congress also changed the law that limited
military chaplains to ministers of the gospel, thus allowing rabbis and
Roman Catholic priests to become chaplains. During the war Congress
created the office of recorder of the deeds for the city of Washington.
The first officer holder was Simon Wolfe, a Jewish immigrant, but after
that, the office was held by African-Americans for the rest of the
century, including Frederick Douglass, Blanch Bruce, a former senator,
and Henry P. Cheatham, a former congressman. In his last public speech
Lincoln called for enfranchising black veterans and other members of
their race. Five years later the Constitution would reflect that goal in
the 14th and 15th amendments.
Today we rightly look
back at these two amendments, and the 13th, as the most important
lasting constitutional legacies of the Civil War. And that they are. But
it is also important that we look at how America’s understanding of the
Constitution, especially as it related to racial and ethnic equality,
changed during the course of the war, and not simply as a consequence of
it. Put differently: The Civil War amendments changed the Constitution.
But even if, somehow, they had never happened, the war itself would
have altered the way Americans saw one another, and their government.
Follow Disunion at twitter.com/NYTcivilwar or join us on Facebook.
Paul Finkelman
is a senior fellow in the Penn Program on Democracy, Citizenship and
Constitutionalism at the University of Pennsylvania and a
scholar-in-residence at the National Constitution Center.
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