Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era

Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era

Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era

Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era

Synopsis

"Americans' ideas about constitutional liberty played a crucial role in the history of Reconstruction. They provided the basis for the Republican program of equal rights; ironically, they also set the limits to that program and reduced the prospects for its success. Americans were as concerned with preserving the Constitution as they were with changing it to protect liberty and equal rights. These two commitments were in profound tension. The question was how one could change the constitutional system to fulfill the promise of the Declaration of Independence to entrench a republic dedicated to liberty instead of slavery and yet preserve the essentials of federalism and local democracy. Almost 150 years later we still struggle with these problems. - Michael Les Benedict, from the Introduction Historians and legal scholars continue to confront the failure of Reconstruction, exploring the interaction of pervasive racism with widespread commitments to freedom and equality. In this important book, one of America's leading historians confronts the constitutional politics of the period from the end of the CivilWar until 1877. Benedict updates ten of his classic essays that explore the way Republicans tried to replace the slaveholding republic with a nation dedicated to freedom and equality of basic legal and political rights and how Americans' constitutional commitments, and those of Republicans themselves, limited reform. Expertly bridging legal, political, party history, the essays explore the fate of the Thirteenth, Fourteenth, and Fifteenth Amendments, as well as the struggle between President and Congress over the course of Reconstruction. Brought together for the first time with a new introduction, and revised to reflect emerging scholarship, the essays are essential points of departure for students and scholars in history, law, and political science.

Excerpt

Henry Ward Beecher, the nation's best-known clergyman, a spellbinding orator, was delivering the keynote address at the second meeting of the American Equal Rights Association. His audience of abolitionists and woman suffragists knew that they were living through a revolution. For decades, they had fought to change the nation's course. They had witnessed the ratification of a constitutional amendment that buried the slaveholding republic that they had fought all their lives, and Americans were in the process of ratifying another that would transform it into one of equal rights for all men. As part of their Reconstruction program, Republicans had mandated that every loyal man, black or white, vote in the South. "We seem to be on the very eve of all that the friends of freedom have ever asked of this nation," Wendell Phillips marveled. Even securing the vote for women seemed possible. "We are in the favored hour," Henry Ward Beecher exhorted the delegates, "and if you have great principles to make known, this is the time to advance those principles."

Both historians and legal scholars have recognized that the years immediately following the end of the Civil War constituted a great era of constitutionmaking—an era of "constitutional politics" in which political contests were thoroughly entwined with fundamental ideas about citizenship, civil and political rights, and the relationship between state and federal government. But their approaches differ. Academics affiliated with law faculties tend to be concerned primarily with constitutional law. They tend to see law as essentially different from politics: politics is about the exercise of power, while law is about the application of rules. American legal academics rarely speak of "constitutional politics." When they utilize the concept (if not the language), they tend to think of it in terms of the contest that led to the framing of the Constitution itself and the political context in which Americans have adopted constitutional amendments. On occasion, they have used the term to describe using litigation to achieve political goals. From this point of view, once the political process has established a constitutional provision, interpreting it is a matter of law to be articulated by judges. They have studied the Reconstruction era primarily to discern how judges should interpret the constitutional amendments that are its greatest legal legacy, focusing especially on what they meant to contemporar-

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