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

By Harold M. Hyman | Go to book overview

Chapter XXV
The Right Way?

I f the politics and constitutionalism of Reconstruction allowed only limited impacts to the Civil War, nevertheless the Union's survival, democracy's reaffirmation, federalism's invigoration, and slavery's death remained fundamental effects. Because these wartime successes occurred, Reconstruction's limits were tied inextricably to prewar constitutional configurations.1

Republican constitutionalism was the source of belief that there were few policy alternatives to curb intrastate excesses. Force was the simplest. But recourse to armed might was always politically and morally unappealing. Republicans wanted the southern states to restore themselves; wanted northern as well as southern states to curb their residents' and officials' unjust behav-

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Republicans, including Radicals, "devised a program which, in spite of much shouting, actually protected and reinstituted the main elements of both [federalism and the Bill of Rights], imposing only a series of legal-constitutional guarantees for Negro political and legal rights which would inevitably be left to southern federal courts to implement. Constitutional conservatism of this kind doomed nominal objectives of the radical program and the nominal professions of radical congressmen to failure. They were, in short, not revolutionary radicals at all. Instead, they were rather conservative constitutional legitimists, operating well within the Hamiltonian-Marshall tradition." Alfred Kelly, in New Frontiers of the American Reconstruction, ed. H. M. Hyman ( Urbana, Ill., 1966), 57; and see M. L. Benedict, The Right Way: Congressional Republicans and Reconstruction, 1863-1869 (Ph.D. diss., RU, 1970), chs. 8-9 and passim; Phillip Paludan, "Law and the Failure of Reconstruction: The Case of Thomas Cooley," JHI, XXXIII ( 1972), 611-14.

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