Reconstruction and the Court
THE OUTBREAK of the Civil War shifted the conflict over slavery from the realm of law and politics to the arena of military battle. Under wartime conditions, the Supreme Court's role was naturally minimized, and the Court showed no great desire to allow itself to be drawn into struggles clearly beyond its capacity to win. From time to time opponents of the Lincoln administration would bring a case to the Court designed, at a minimum, to embarrass the administration and, if possible, to hinder the war effort. But the Court, perhaps chastened by Dred Scott or perhaps sensing the inadequacies of judicial power in wartime, consistently backed away. In 1863, for example, the Court permitted the Lincoln administration to continue its characterization of the war as a "domestic insurrection" yet allowed it, at the same time, to enjoy all the latitude that went with the practice of international warfare. 1 In 1864, similarly, the Court refused to consider the constitutionality of military trials of civilians in places where the civilian courts were open. 2 Little wonder, then, that Roger Taney feared the Court would never recover its strength and independence.
The secession of the Southern states, Lincoln's Emancipation Proclamation, and the eventual military occupation of the Confederacy raised constitutional and legal problems of such scope and significance, however, that the Court could hardly escape becoming involved once the war ended. In the first few years after the shooting stopped, the Court did indeed play a major role in shaping the nation's policy of Reconstruction.
The problems presented by Reconstruction fell into three broad categories. The first set involved questions of policy. What was to be done about the rebellious states, their property, their war debt, their leaders, and--