Abraham Lincoln, Constitutionalism, and Equal Rights in the Civil War Era

DURING THE CONSTITUTIONAL BICENTENNIAL, in a widely noted speech cautioning against making "a blind pilgrimage to the shrine of the original document," Supreme Court Justice Thurgood Marshall posed the issue that is central to the study of the Constitution and Reconstruction. Accepting as historical authority Chief Justice Roger Taney's assertion in the Dred Scott case that Negroes had no rights under the Constitution, Justice Marshall stated that "while the Union survived the Civil War, the Constitution did not." "In its place," he said, "arose a new, more promising basis for justice and equality"--the Fourteenth Amendment. In essence, the Fourteenth Amendment was a new Constitution. It was made by men who "refused to acquiesce in outdated notions of 'liberty,' 'justice,' and equality" contained in the original Constitution. The framers of the Reconstruction amendments conceived of "new constitutional principles" guaranteeing "respect for the individual freedoms and human rights . . . we hold as fundamental today." Marshall argued, in effect, that historical knowledge about the constitutional significance of Reconstruction would enable Americans to understand the nature of constitutional government in our own time and liberate us from the error and injustice of the nation's Founding.¹

Justice Marshall's historical reflections attracted attention because they were not, of course, merely historical. The Constitution to which he referred, whether it be regarded as the framers' document or a new instrument produced in the upheaval of civil war, is the same one that governs our political order today. Since historical analysis continues to be one of the basic approaches to interpreting

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