American Constitutional Development from 1789 to 1868

Complicating these tasks were jealousies between states, fears of a strong central government, and differing social conditions among the states. The five southernmost states were deeply worried about the safety of slavery under a stronger national government; five states had ended slavery or were in the process of doing so. The commodity-producing slave states feared a national government that might regulate commerce in ways that would favor the more commercial states of the North. The Carolinas and Georgia particularly feared that the new government would prohibit the African slave trade. Many northerners were hostile to the African trade and skeptical about being forced to do the bidding of southerners who had special needs because of slavery.

Most delegates favored population-based congressional representation, but southerners and northerners disagreed on whether to count slaves when allocating representatives. Delegates from the smallest states feared that, without state equality in the national legislature, the large states would oppress them. The eventual compromise counted three-fifths of the slave population for the allocation of representation in the House of Representatives and gave every state two senators. The Constitution also created a cumbersome system for electing the president, through presidential electors allocated according to the state's total representation in the House plus its two senators. Thus the Electoral College gave slave owners extra political power through the three-fifths clause and favored the smaller states because every state had two senators no matter what its population. In the twentyfirst century, the Electoral College still remains a fundamentally undemocratic aspect of the Constitution, giving greater power to residents of smaller states and diluting the electoral power of residents of larger states. Under the Electoral College it is possible for the candidate with the most popular votes to lose the election. Because of the bonus in the Electoral College of two senators for each state, the small states have a decided advantage over the large states in presidential elections. The forty smallest states, representing only 46 percent of the population, have a majority of the electoral college votes, and thus can outvote the 54 percent of the population living in the ten largest states.

The delegates provided for a national court system, but they spent little time discussing how it would work. The Constitution did not include a bill of rights because most of the delegates (and later the Federalists who supported ratification) felt a bill of rights was unnecessary, inappropriate, or even dangerous in a government with limited powers. James Madison argued that a bill of rights was useless—“a parchment barrier” that Congress would ignore when it was convenient.

In the end the new Constitution contained sparse (and sometimes intentionally confusing) language, with complex and subtle provisions. It was open to multiple understandings and interpretations, and the Convention purposely refused to provide any records of its deliberations or debates, therefore making it impossible for future politicians or judges to fully understand their intentions. As a result, scholars, jurists, and other avid readers rely on the published notes of James Madison and other delegates. Some of these notes were first published in the early nineteenth century, but all known records of the Convention were compiled by Max Farrand with a supplement by James Huston ( Farrand 1967; Hutson 1987 ).

Opponents of ratification (Anti-Federalists) wanted to restructure the government, reduce the powers of the national government, and hold a new convention to rewrite the document. They persistently demanded a bill of rights. Many northerners denounced slavery provisions, especially the prohibition on ending the African slave trade before 1808. Despite strong debates and vociferous opposition, by July 1788 eleven states (two more than the requisite number of nine states) had ratified the document, and in March 1789 George Washington was inaugurated as president and the new government was launched.

CREATING A NEW GOVERNMENT AND AMENDING THE CONSTITUTION

The first task under the Constitution was to actually make the new government operational. Congress created executive departments and officers (initially War, State, Treasury, attorney general, and postmaster general), established a Supreme Court and lower federal courts, created officials to collect revenue, passed import duties, provided for the sale and settlement of western lands, established an army and a navy, provided for the appointment of diplomats and the funding of embassies, and in other ways implemented the new Constitution. In the next few years, acting under specific grants of power in the Constitution, Congress passed a militia act ( 1793 ) to ensure a pool of trained men in the event of war, created a separate Department of the Navy ( 1798 ), established a postal system ( 1792 ), and created a national mint and provided for the regular minting of United States coins, which was an essential attribute of national sovereignty ( 1792 ).

In the First Federal Congress ( 1789

One of the few important cases the Supreme Court heard in its first decade concerned the clause that gave the Court jurisdiction “to Controversies … between a State and Citizens of another State.” In Chisholm v. Georgia, 2 U.S. 419 ( 1793 ), the Court upheld the right of citizens of South Carolina to sue the state of Georgia in federal court for debts owed from selling uniforms to Georgia during the Revolution. Most states were shocked by this interpretation, and by 1795 the nation had ratified the Eleventh Amendment, declaring that federal jurisdiction “shall not be construed to extend to any suit” brought by a citizen of another state or a foreign citizen against a state. In 1798 President John Adams signed the Sedition Act, making it a crime to criticize the president and Congress but, significantly, not the vice president ( who was Adams's political rival, Thomas Jefferson ). Between 1798 and the end of the presidential campaign of 1800, about a score of Jefferson's supporters were arrested under the act.

In retrospect this law seems to be an obvious violation of the First Amendment. But the Supreme Court never ruled on its validity at the time, and it expired on the last day of the Adams administration. In the twentieth century, in New York Times v. Sullivan, 376 U.S. 254 ( 1964 ), the Court declared that the Sedition Act had been found unconstitutional “in the Court of history.” Jefferson pardoned those convicted under the law, but once in power he initiated his own prosecutions of newspapers and others who opposed his administration. Some of these prosecutions continued into Madison's administration. Thus several of the leading Founders, including Adams, Jefferson, and Madison himself, violated the parchment barrier. Jefferson also unsuccessfully tried to use the impeachment process to remove Supreme Court justices he did not like, but even some members of his own party opposed this attempt to destroy the independent judiciary.

In 1804 the requisite three-fourths of the states ratified the Twelfth Amendment, which required that electors designate separate presidential and vice presidential choices. This modified the method of electing the president to prevent opposing candidates from ending up in the same administration, as had happened in 1796 with the election of President John Adams and Vice President Thomas Jefferson, or two candidates from the same party being tied for the presidency, as happened in 1800 when Jefferson and Aaron Burr had the same number of electoral votes. The 1800 election resulted in near catastrophe. Between February 11 and February 17, the House voted thirty-five times, each time with the same result. Jefferson carried eight of the seventeen state delegations—one short of the necessary majority—while Burr carried six states and two state delegations were tied. Finally, mostly through the intervention of Alexander Hamilton, a number of Federalists cast blank ballots, allowing Jefferson to pick up two state delegations and win the presidency. This election was the nation's first great constitutional crisis. Jefferson feared that if the House had failed to resolve the election, Adams might have stayed in power. Thus Jefferson frantically wrote to governors sympathetic to him, urging them to send their state militias to the new national capital in Washington to seize the government if necessary.

After 1804 no other amendments were ratified until after the Civil War, although two—one banning titles bestowed by foreign governments ( 1810 ) and one promising that Congress would never interfere with slavery in the states ( 1861 )—received two-thirds majorities in both houses of Congress, but neither was ratified by the states.

In 1801, while the House was trying to resolve the 1800 presidential election, the outgoing president, John Adams, nominated John Marshall of Virginia to be the next chief justice of the United States. Marshall served for thirty-four years and shaped the meaning of the Constitution, establishing the Supreme Court as a coequal branch of government with Congress and the president.

ECONOMIC DEVELOPMENT AND CONSTITUTIONAL INTERPRETATION, 1801–61

The most important constitutional developments from the 1790s to the 1860s concerned economics, politics, state–federal relations, and slavery. Some involved the Supreme Court, but many involved Congress and other political actors.

The National Bank. The first great post-ratification constitutional debate began in December 1790, when Secretary of the Treasury Alexander Hamilton proposed that Congress charter a national bank. In the House of Representatives, James Madison, who had been Hamilton's ally during the ratification struggle, unsuccessfully argued that Congress lacked the constitutional power to create a bank. After Congress passed the bank bill, President Washington asked his cabinet to weigh in on the constitutional issues. Secretary of State Thomas Jefferson and Attorney General Edmund Randolph ( 1753–1813

When the charter expired in 1811, Madison was president, and the bank closed. During the War of 1812, however, the government suffered from the lack of a bank and a national currency, and President Madison now admitted that Hamilton had been correct: a bank was “necessary and proper” to a functioning government. In 1816 Madison signed a law creating the Second Bank of the United States. In McCulloch v. Maryland, 17 U.S. 316 ( 1819 ), which was one of his most important Supreme Court opinions, Chief Justice Marshall emphatically upheld the constitutionality of the Bank. Looking at the entirety of the Constitution, Marshall found numerous places where a safe, secure, fully functioning national bank was “necessary” for the smooth operation of the government, such as borrowing money, collecting taxes, regulating commerce, supporting the army and navy, and conducting a war. The Bank was necessary because “the sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are intrusted to its Government” (17 U.S. at 407).

KEY DATES

1789:
George Washington is inaugurated as the first president of the United States.
1789:
In the First Federal Congress, James Madison introduces a series of amendments, twelve of which are sent on to the states.
1791:
Three-fourths of the states ratify ten of the twelve amendments, which become known as the Bill of Rights.
1791:
Congress charters the Bank of the United States, the first national bank. The bank would close in 1811 upon expiration of the charter.
1792:
Congress establishes a postal system and creates a national mint, providing for the regular minting of United States coins.
1792:
Congress passes a pair of militia acts.
1793:
In Chisholm v. Georgia, the Supreme Court upholds the right of citizens of South Carolina to sue the state of Georgia in federal court for debts owed from selling uniforms to Georgia during the Revolution.
1795:
Largely in reaction to the Chisholm v. Georgia decision, the Eleventh Amendment is ratified. It declares that federal jurisdiction “shall not be construed to extend to any suit” brought by a citizen of another state or a foreign citizen against a state.
1798:
Congress creates a separate Department of the Navy.
1798:
President John Adams signs the Sedition Act, making it a crime to criticize the president and Congress but, significantly, not the vice president, his rival Thomas Jefferson.
1801:
President John Adams nominates John Marshall of Virginia to be the next chief justice of the United States Supreme Court. Marshall would serve for thirty-four years and shape the meaning of the Constitution, establishing the Supreme Court as a coequal branch of government with Congress and the president.
1803:
In Marbury v. Madison, Chief Justice John Marshall holds that the Supreme Court has the power to declare an act of Congress unconstitutional. This was the only time Marshall ever struck down a federal law.
1804:
The requisite three-fourths of the states ratify the Twelfth Amendment, which requires that electors designate separate presidential and vice presidential choices.
1819:
In McCulloch v. Maryland, one of his most important Supreme Court opinions, Chief Justice John Marshall emphatically upholds the constitutionality of the Bank of the United States.
1819:
Congress passes the Force Bill, which authorizes President Jackson to use federal troops to enforce federal tariff laws in South Carolina.
1820:
The Missouri Compromise permits Missouri to enter the Union as a slave state, permits Maine to enter as a free state, and prohibits slavery in all territories north of the southern border of Missouri.
1839:
The Removal Act of 1839 authorizes federal agents to begin removing Native Americans from southern states to the Oklahoma territories. Thousands of tribal members died along the Trial of Tears.
1857:
In Dred Scott v. Sandford, Supreme Court Chief Justice Roger Taney holds that Congress could never constitutionally limit slavery in any federal territory, that slavery was a specifically protected property under the Constitution, and that no black could sue in federal courts because no blacks—even those who were free and could vote or hold office in some northern states—could ever be considered citizens of the United States.
1860:
Abraham Lincoln becomes the first open opponent of slavery to be elected president. By the time he took office, seven states had formally seceded and formed the Confederate States of America.
1861:
The Civil War begins when Confederate troops fire on Union forces stationed at Fort Sumner, in Charleston, South Carolina. Four more states join the Confederacy after Lincoln issues a call to arms.
1863:
Lincoln issues the Emancipation Proclamation, freeing all slaves in those parts of the South still under Confederate control.
1865:
The Civil War ends. The Thirteenth Amendment is ratified.
1868:
The Fourteenth Amendment is ratified.
1868:
President Andrew Johnson is the first president impeached by the House of Representatives in American history. After a lengthy trial, the prosecution falls just one vote short of the necessary two-thirds majority of the Senate to remove him from office.

Marshall argued that the Constitution had to be read broadly to give the national government flexibility to govern. Reminiscent of Hamilton's means-end argument, Marshall wrote: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional” (17 U.S. at 421). He reminded Americans: “In considering this question, then, we must never forget that it is a Constitution we are expounding” (17 U.S. at 407). This Constitution was, he continued:

intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur (17 U.S. at 415).

In McCulloch Marshall established the power of Congress to act in any way that did not contradict the Constitution. He had earlier held, in Marbury v. Madison, 5 U.S. 137 ( 1803 ), that the Court had the power to declare an act of Congress unconstitutional (as he did in that case). Marbury was the only time Marshall ever struck down a federal law, but his court often found state laws unconstitutional. Thus, in Dartmouth College v. Woodward, 17 U.S. 518 ( 1819 ), he prevented the state of New Hampshire from abolishing Dartmouth College because the college's charter constituted a “contract,” and the Constitution prohibited the states from “impairing the Obligation of Contacts.” In Gibbons v. Ogden, 22 U.S. 1 ( 1824 1821 ), he emphatically upheld the right of the Supreme Court to review a criminal conviction in Virginia because the case involved a federal law and a claim by the defendant of a federal right. Although Marshall upheld the conviction, Virginia authorities still vigorously argued that the Court had no right to hear the case in the first place.

Equally important in establishing the power of the Supreme Court to be the final arbiter of the meaning of the Constitution was Justice Joseph Story's opinion in Martin v. Hunter's Lessee, 14 U.S. 304 ( 1816 ), which involved land Virginia had confiscated during the Revolution. Treaties with Great Britain after the Revolution required that such land be returned to the original owners, but Virginia adamantly refused to do this and denied the Court had any authority in the matter. The issue in the case was about power, and the Court had the last word, holding that the supremacy clause, which declares that “the Constitution … and all Treaties made … shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby,” trumped Virginia's laws. Justice Story also emphatically affirmed the Supreme Court's power to hear appeals from state cases and to overturn state court decisions. Story declared:

If there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties, and the Constitution of the United States would be different in different states; and might perhaps never have precisely the same construction, obligation, or efficacy, in any two States. The public mischiefs that would attend such a state of things would be truly deplorable; and it cannot be believed that they could have escaped the enlightened convention which formed the Constitution (14 U.S. at 348).

Although Marshall upheld the constitutionality of the Bank in McCulloch, as well as the power of Congress to use the necessary and proper clause, the history of the Bank and its relationship to constitutional development did not end there. In 1832 Congress passed a bill to recharter the Second Bank of the United States when its existing charter ran out in 1836. President Andrew Jackson vetoed the bill, arguing that, despite what Marshall said, the Bank was in fact unconstitutional. He felt that the new “charter proposed by this act” was not “consistent with the rights of the States or the liberties of the people.” Jackson of course was perfectly free to veto the bank bill, as he did, and to read the Constitution in a different way from Marshall. Jackson was not challenging Marshall's power to uphold the 1816 charter, but he was asserting his right as president to independently interpret the Constitution when deciding whether to sign a bill, or veto it, based on his constitutional understanding. Modern presidents often follow Jackson's lead in this way.

Tariff Policies and Nullification. Another great constitutional crisis—almost as important as the 1800 election— arose over tariff policies. In 1828 and 1832 Congress passed a highly protective tariff to protect emerging American industries. South Carolina believed the 1832 tariff was harmful to the state's interests and passed an Ordinance of Nullification, declaring that the law would not be enforced in the Palmetto State. In the Senate, Daniel Webster ( 1782–1852 ) of Massachusetts vigorously debated Robert Y. Hayne ( 1791–1839 ) of South Carolina. President Jackson threatened to use federal troops to enforce the law, and Congress passed the Force Bill to allow Jackson to do just that. South Carolina backed down, but then petulantly passed a law “nullifying” the federal Force Bill.

Indian Removal. While dealing with the nullification crisis, Jackson also negotiated with Georgia over the removal of the Cherokee Indian nation. Indian removal had been a key national policy since Jefferson's presidency. In Johnson and Graham v. M'Intosh, 21 U.S. 543 ( 1823 ), Marshall had declared that Indian tribes could never own land and that Congress could abrogate treaties at will. When Georgia violated treaties with the Cherokee, Chief Justice Marshall refused to intervene, and in Cherokee Nation v. Georgia, 30 U.S. 1 ( 1831 ), he held that Indian nations had no power to sue in federal court because they were “domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases; meanwhile, they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian” (30 U.S. at 2). In Worcester v. Georgia ( 1832 ), Marshall held that a white missionary had a right under federal law to live among the Cherokee, but this decision did not interfere with the power of the national government to abrogate Indian treaties at will and remove all Indians west of the Mississippi. Jackson then negotiated a compromise with Georgia, in which Worcester was released from jail (and exiled to the Indian Territory, present-day Oklahoma) and the United States guaranteed the removal of all Cherokee from Georgia.

Commercial Regulations. When Marshall died, Jackson appointed Roger B. Taney, his former attorney general, to lead the Court. Taney's court modified some of the commercial regulations of the Marshall Court, giving more power to the states to regulate interstate commerce. In Mayor of New York v. Miln, 36 U.S. 102 ( 1837 1852 ), the Court upheld a Pennsylvania law requiring that all ships entering the city of Philadelphia's port take on a local pilot. In Charles River Bridge v. Warren Bridge, 36 U.S. 420 ( 1837 ), the Court held that narrowly construing a bridge charter did not violate the Constitution's contracts clause. This decision helped stimulate new technological innovations and developments. Despite its general deference to states, in The Passenger Cases, 48 U.S. 283 ( 1849 ), the Court found that a direct tax on immigrants violated the commerce clause, and in The Propeller Genesee Chief v. Fitzhugh, 53 U.S. 443 ( 1852 ), the Court extended federal admiralty jurisdiction to inland lakes and rivers.

Slavery. From 1819 to 1861 the most important constitutional issues in Congress and before the Court revolved around slavery. In the Missouri Compromise ( 1820 ), Congress allowed Missouri to enter the Union as a slave state but banned slavery in the federal territories north and west of Missouri. Many southerners believed this law violated their constitutional rights. In the 1830s and 1840s, the House of Representatives refused to accept antislavery petitions, tabling them without even reading them. Many northerners considered this a grotesque violation of the First Amendment, which guaranteed the right of the people to “petition the government for a redress of grievances.” In 1844 President John Tyler signed a bill to annex the independent Republic of Texas, which became the nation's largest slave state. When he could not muster the two-thirds vote in the Senate necessary to ratify a proposed treaty with Texas, Tyler annexed it with a simple statute. Many northerners believed this process was unconstitutional. Debates in Congress in the 1840s and 1850s swirled around admitting new slave states, opening more territories to slavery, and the passage of a new fugitive slave law, which denied alleged slaves the right to a jury trial or access to habeas corpus. Opponents argued that this provision explicitly violated the procedures specified in the Constitution for suspending the Great Writ.

Meanwhile the Court consistently interpreted the Constitution to support the interests of slave owners. Chief Justice Taney was deeply committed to slavery and throughout his career argued that free blacks could never be citizens of the United States. In Prigg v. Pennsylvania, 41 U.S. 539 ( 1842 ), Story, writing for the Court, upheld the constitutionality of the Fugitive Slave Law of 1793. More important, he ruled that no state could pass laws to protect their free black citizens from kidnapping and that slave owners had a constitutional right to seize their fugitive slaves and take them to the South without any due process hearing. In Jones v. Van Zandt, 46 U.S. 215 ( 1847 ), the Court upheld a huge monetary judgment against a white man who had offered a ride to blacks (who were in fact fugitive slaves) walking along a road in the free state of Ohio. The Court reasoned that, even in a free state, Van Zandt should have known the blacks were fugitive slaves. In Dred Scott v. Sandford, 60 U.S. 393 ( 1856 ), Chief Justice Taney held that Congress could never constitutionally limit slavery in any federal territory, that slavery was a specifically protected property under the Constitution, and that no black could sue in federal courts because no blacks, even those who were free and could vote or hold office in some northern states, could ever be considered citizens of the United States. Taney asserted in Dred Scott that since the founding all African Americans were “considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them” ( 60 U.S. at 404–5 ). Since 1787 the national government had constantly regulated slavery in the territories, and thus Taney's arguments on the territories shocked most northerners. Similarly, many northerners rejected Taney's claims about citizenship, in part because in 1787 and 1788 free black men could vote in six states and helped ratify the Constitution. Even in northern states where blacks could not vote, they were allowed to own property, attend schools, and engage in almost all economic activities, as other citizens could do.

Two years later, in Ableman v. Booth, 62 U.S. 506 ( 1859 ), Taney abandoned his strong support for states’ rights, holding that the Wisconsin courts could not interfere with the arrest of a state citizen accused of rescuing a fugitive slave. In this emphatically proslavery decision, Taney sounded as nationalistic as John Marshall, asserting that “the statesmen who framed the Constitution” believed “that it was necessary that many of the rights of sovereignty which the States then possessed should be ceded to the General Government; and that, in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a State or from State authorities” (62 U.S. at 517). A court that had consistently supported states’ rights now suddenly rejected the theory to protect slavery. Ironically, in Cooper v. Aaron, 358 U.S. 1 ( 1958 ), which stemmed from the integration of Central High School in Little Rock, Arkansas, the Supreme Court cited the proslavery decision in Ableman for the proposition that state officials could not block integration.

THE CONSTITUTION'S GREATEST CRISIS: 1861–68

The Civil War raised numerous constitutional questions dealing with the power of national government, the exigencies of war, and slavery and race. When the war began, the United States Army was tiny, had no national police force or secret service, and had few laws to prevent sabotage or even violence against the national government. The Constitution allowed for the suspension of the writ of habeas corpus “when in Cases of Rebellion or Invasion the public Safety may require it.” The Constitution did not designate whether Congress, the executive branch, or even the courts might suspend the writ. Congress was not in session when the war began, and Lincoln used the suspension clause to allow the army to arrest saboteurs who were destroying railroad tracks and bridges and organizing pro-Confederate militias in Maryland. In Ex parte Merryman, 17 F. Cas. 144 ( C.C.D. Md. 1861 ) ( No. 9487 ), Chief Justice Taney, ruling from his Supreme Court chambers, declared that the suspension was unconstitutional, asserting that only Congress could suspend the writ. Lincoln ignored the ruling—pointing out that, if Congress was not in session, the government still had to protect itself from violent assaults—and continued to hold Merryman and other traitors in the North who were making war on the United States. When Congress came back into session in July 1861, it authorized far more extensive suspensions of the writ. The Supreme Court never heard any other suspension cases during the war.

The administration also blockaded southern ports, which the Supreme Court narrowly approved in The Prize Cases, 67 U.S. 635 ( 1863 ), taking “judicial notice” that a civil war was in progress and such wars are never declared. The administration directly issued paper money for the first time in American history, imposed an income tax for the first time, and created a commissioner of internal revenue, which was the forerunner of the modern Internal Revenue Service. The Supreme Court refused to consider the validity of paper currency in Roosevelt v. Meyer, 68 U.S. 512 ( 1863 ), but in Knox v. Lee, 79 U.S. 457 ( 1871 ), and Parker v. Davis (resolved in the same decision), the Court affirmed the constitutionality of the paper money issued by the United States. During the war the army suppressed some newspapers in the North, although the administration usually countermanded these actions. Throughout the war the northern press was enormously free, and anti-Lincoln papers regularly criticized the president and the war effort, with no legal consequences. Congress created a military draft, and a few legal challenges to it failed. The Confederacy, which had a constitution similar to that of the United States, also suspended habeas corpus, but southern officials arbitrarily arrested significantly more citizens, censored the press, and closed down almost all opposition papers.

The war also raised constitutional questions about slavery, and with eleven slave states no longer participating in Congress, it was possible to deal with slavery at the national level. In his inaugural address Lincoln reiterated that he had “no lawful right” to “directly or indirectly … interfere with the institution of slavery.” This was the accepted understanding of the Constitution. But, as slaves escaped across US Army lines, the administration authorized their emancipation because they were “contrabands of war” being used by the Confederate army. Congress authorized the emancipation of slaves owned by those in rebellion under the Confiscation Acts of 1861 and 1862, ended slavery in the District of Columbia by “taking” slave property and compensating masters, and ended all slavery in the territories, without compensation, ignoring the Dred Scott decision. On January 1, 1863, Lincoln issued the Emancipation Proclamation, freeing all slaves in those parts of the South still under Confederate control. He acted under his constitutional powers as commander in chief of the army. No one ever tested the constitutionality of this act, and by December 1865 the Thirteenth Amendment had ended all slavery in the nation, thus mooting any constitutional issues from the Emancipation Proclamation.

Reconstruction and Civil Rights. As the war wound down, Congress and eventually the Court had to deal with issues of freedom, military trials of civilians, and the Reconstruction of the Union. The Thirteenth ( 1865 ), Fourteenth ( 1868 ), and Fifteenth ( 1870




The House of Representatives celebrating the passage of the Thirteenth Amendment to the Constitution, which abolished slavery, January 31, 1865.





The House of Representatives celebrating the passage of the Thirteenth Amendment to the Constitution, which abolished slavery, January 31, 1865.
© MPI/ARCHIVE PHOTOS/GETTY IMAGES

The government embarked on a massive social welfare program under the Freedmen's Bureau but was stymied in giving former slaves land as a result of various clauses of the Constitution. Military Reconstruction led to a variety of cases involving the jurisdiction of Congress, with the Court acquiescing in Congressional policy in Mississippi v. Johnson, 71 U.S. 475 ( 1867 ); Georgia v. Stanton, 73 U.S. 50 ( 1867 ); and Ex parte McCardle, 74 U.S. 506 ( 1869 ). Throughout this period President Andrew Johnson, a former slave owner who took office after Lincoln was assassinated, did everything in his power to foil attempts by Congress to protect black rights. He vetoed the Civil Rights Act and the Freedmen's Bureau Act, and when the vetoes were overridden, he refused to enforce the acts. This led in 1868 to his impeachment by the House—the first presidential impeachment in history. After a lengthy trial the prosecution fell just one vote short of the necessary two-thirds majority of the Senate to remove him from office. The acquittal was mostly due to presidential politics. A few supporters of the presidential aspirations of General Ulysses S. Grant ( 1822–85 ) thought he would fare better if Johnson remained in office, because if Johnson were convicted, the Radical Republican, Benjamin F. Wade ( 1800–78 ), as president pro tem of the Senate, was next in line for the presidency.

The Constitution never contemplated secession, a civil war, or the military occupation of large parts of the nation. But the Court, now under the leadership of Salmon P. Chase, who had been an active abolitionist before the war, generally supported an innovative and flexible approach to Reconstruction. At the same time, the Court began to protect civil liberties in ways that had never been done before. Thus, in Ex parte Milligan, 71 U.S. 2 ( 1866 ), the Court held that, where civilian courts were in place and working, it was unconstitutional to try civilians by military tribunals. Similarly, in Cummings v. Missouri, 71 U.S. 277 ( 1867 ), and Exparte Garland, 71 U.S. 333 ( 1867 ), the Court held that Congress could not constitutionally require civilians to take a “test oath” swearing they had never been part of the Rebellion. In Texas v. White, 74 U.S. 700 ( 1869 ), an important, but almost impossibly complicated case, Chief Justice Chase ruled that the former Confederate states had never ceased to exist, as states within the Union, because the Constitution “looks to an indestructible Union composed of indestructible states.” Thus secession was constitutionally impossible. Chase concluded, however, that when Texas seceded, its government ceased to exist and that all acts of the Confederate state governments “were absolutely null,” and as such Congress had the power to create new governments and reconstruct the states.

Legacy of the Civil War. In the aftermath of Reconstruction, the Court refused to vigorously enforce the new amendments. Gradually, whites hostile to equality regained political power and used that power to segregate and disenfranchise blacks and economically, legally, and politically oppress them. By and large, the Court acquiesced to these changes from the 1870s until the mid-twentieth century, as did successive Congresses populated by unreconstructed representatives and senators from seventeen segregating states. But the legacy of the Civil War—the three amendments—remained in the Constitution, to be revived in the modern era.

SEE ALSO American Constitutional Development from 1868 to 1937 ; Civil War Amendments ; Marshall, John ; Slavery ; US Bill of Rights .

BIBLIOGRAPHY

Finkelman, Paul. Slavery and the Founders: Race and Liberty in the Age of Jefferson. 3rd ed. New York: Routledge, 2015.

Finkelman, Paul. “Story Telling on the Supreme Court: Prigg v. Pennsylvania and Justice Joseph Story's Judicial Nationalism.” Supreme Court Review 2 (1994): 247–94.

Finkelman, Paul. “The Proslavery Origins of the Electoral College.” Cardozo Law Review 23, no. 4 (2002):1145–57.

Farrand, Max. Records of the Federal Convention of 1787. 4 vols. Rev. ed. New Haven, CT: Yale University Press, 1966.

Hutson, James. H., ed. Supplement to Max Farrand's Records of the Federal Convention of 1787. New Haven, CT: Yale University Press, 1987.

Hyman, Harold M., and William M. Wiecek. Equal Justice under Law: Constitutional Developments, 1835–1875. New York: Harper & Row, 1982.

Madison, James. “Notes of the Debates in the Federal Convention of 1787. Recorded by James Madison.” In The Debates in the Federal Convention of 1787 which Framed the Constitution of the United States of America, edited by Gaillard Hunt and James Brown Scott. New York: Oxford University Press, 1920. http://avalon.law.yale.edu/subject_menus/debcont.asp .

Newmyer, R. Kent. John Marshall and the Heroic Age of the Supreme Court. Baton Rouge: Louisiana State University Press, 2001.

Newmyer, R. Kent. Supreme Court Justice Joseph Story: Statesman of the Old Republic. Chapel Hill: University of North Carolina, 1985.

Urofksy, Melvin I., and Paul Finkelman. A March of Liberty: A Constitutional History of the United States. 2 vols. 3rd ed. New York: Oxford University Press, 2011.

Paul Finkelman
University of Saskatchewan School of Law University of Pennsylvania