The New York Times JUNE 2, 2015
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.
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.
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.
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.
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.
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.
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.
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.