A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution

By Harold M. Hyman | Go to book overview

Chapter XXI
Search for an Old Order

Secession had set men to musing about the need to have the nation's and states' constitutions "thoroughly restudied," as Supreme Court Justice Wayne reminded Judge Advocate Holt, Professor Lieber, and Secretary of State Seward in 1864. Keenly aware that the War was accelerating precedent pressures for change and creating new ones, and that appropriate adaptation was wanted in America's governing institutions, in 1861 Seward had proposed an extraordinary national constitutional convention. In 1865 Lieber circulated knowledgeable coadjutors, especially lawyers, to learn their ideas on War-wrought shifts requiring accommodation through ordinary amendment and political machineries.

Differences between the 1861 and 1865 approaches reflect the altered climate of constitutional opinion, and the availability by the time Lee surrendered of constitutional glosses and compendia of the sort Lieber and Holt composed. The thin quantity and careless quality of replies to Lieber's questionnaires illustrate the indifference to abstract questions prevailing in the Appomattox spring and summer. This indifference is visible also in law- journal articles and editorials of 1865-66, which dealt almost exclusively with "bread-and-butter" matters.1 When lawyers, the

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1
On William Seward in 1861, see Round Table, III ( Jan. 20, 1866), 40; CG, 36 Cong., 2 sess., 341-6. On the 1864 meeting and Wayne's phrase, Charles Sumner to Francis Lieber, Feb. 19, 1864, Lieber Papers, HL, which collection contains also Lieber's 1865 questionnaires. Other data in Lieber, A Letter to Hon. E. D. Morgan, Senator of the United States, on the Amendment of the Constitution Abolishing Slavery, Resolutions, Passed by the New York Union League Club, Concerning Conditions of Peace with the Insurgents ( New York, 1865), 11-12 and passim; Harold M. Hyman , "Law and the Impact of the Civil War: A Review Essay," CWH, XIV ( 1968), 51-9; Henry Hitchcock, American State Constitutions: A Study of Their Growth ( New York, 1887), 12-36.

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