The Discourse of Law in Time of War: Politics and Professionalism during the Civil War and Reconstruction

Article excerpt

ABSTRACT

This Article assesses the role of law and lawyering in time of war by examining how lawyers responded to and were affected by the Civil War and Reconstruction. Although the modern legal profession has its roots in the same time period (legal formalism, education in law schools rather than apprenticeships, Socratic instruction, bar associations, large firm practice, and a distinct brand of constitutional conservatism all emerge in the 1870s), historians of the legal profession have largely ignored the relationship between professional organization and lawyers' experience of the Civil War and Reconstruction.

Before the war period, many elite lawyers were committed to an ideal of professionalism that demanded direct engagement with matters of public concern. Lawyers who embraced the ideal were, as Joseph Story put it, "public sentinels," obliged not just to represent clients, but to defend the Constitution and the nation from lawlessness by helping to shape public opinion. Lawyers fulfilled this obligation not just by lauding the Constitution and rule of law values in public oratory, though this was a common practice, but by creating and disseminating a discourse that placed the authority of law at the center of pressing social questions.

During the Civil War and Reconstruction this professional ideal came to grief as legal discourse degenerated into a war of ideas over the constitutional contradictions opened by secession, unprecedented assertions of executive branch war powers, and often violent southern resistance to Reconstruction after Appomattox. Story's "public sentinels" set upon each other, threatening professional authority by exposing deep rifts in the profession about the legal status of events on the ground. Chastened and exhausted by this intraprofessional strife, elite lawyers gradually converged on a conservative view of the Reconstruction Amendments stressing constitutional continuity with respect to federalism principles and the irrelevance of federal law to the condition of blacks in the South. Central to this convergence was the development of organizational structures that provided collective, less directly political, venues in which to vindicate professional ideals and secure professional authority.

TABLE OF CONTENTS

I.   INTER ARMA SILENT LEGES
     ("IN WAR, THE LAW IS SILENT")
II.  ELIDING THE WAR AND RECONSTRUCTION
     EXPERIENCE
     A. Whiggish Accounts
     B. Neo-Marxist Accounts
III. PROFESSIONALISM IN THE AGE OF
     JACKSONIAN DEMOCRACY
IV.  THE FAILURE OF LAW
     A. Constitutional Stalemate
     B. Rupture
     C. Constitutional Antimonies
        1. Force/Consent: Secession or Lawless Rebellion?
        2. Order/Liberty: The Doctrine of Necessity
        3. Restoration or Reconstruction?
        4. The Desire for Consensus
V.   PROFESSIONAL ORGANIZATION AND REDEMPTION
CONCLUSION

I. INTER ARMA SILENT LEGES ("IN WAR, THE LAW IS SILENT")

   During the late wicked Rebellion, the temper of the times did
   not allow that calmness in deliberation and discussion so
   necessary to a correct conclusion of a purely judicial question.
   Then, considerations of safety were mingled with the exercise of
   power; and feelings and interests prevailed which are happily
   terminated. Now that the public safety is assured, this question,
   as well as all others, can be discussed and decided without
   passion or the admixture of any element not required to form a
   legal judgment. We approach the investigation of this case, fully
   sensible of the magnitude of the inquiry and the necessity of full
   and cautious deliberation. (1)

This is Justice Davis writing for the majority in Ex parte Milligan just after the Civil War. Embedded in the paragraph are carefully placed assertions about the conditions necessary for reaching correct legal conclusions, and certain assumptions about what legal reasoning is and what it is not. …