Vol. 27 No. 9 (December 2017) pp. 144-146

LIBERTY & UNION: THE CIVIL WAR ERA AND AMERICAN CONSTITUTIONALISM, by Timothy S. Huebner. Lawrence, Kansas: The University Press of Kansas, 2016. 544pp. Cloth $34.95, ISBN: 978-0-7006-2269-6. Paper $26.95, ISBN: 978-0-7006-2486-7.

Reviewed by Stephen B. Presser, Northwestern Pritzker School of Law. E-mail:

Let’s get the preliminaries out of the way. LIBERTY & UNION is one of the best one-volume histories of the Civil War era we are likely to get. It is beautifully and yet crisply written, it comprehensively covers events from before the Civil War’s beginning in 1861, and through Reconstruction until the controversial election of Rutherford Hayes in 1876. It is a remarkably objective analysis of politics and law during that period, and really, is three books rolled into one fairly tight 450-page package of text. These three books are (1) a narrative history of the Civil War years, complete with coverage of the major battles and generals, (2) an analysis of Constitutional theory as it developed before and after the War in both North and South, and (3) a discussion of the emergent political activity of African Americans as they contributed to the War, Reconstruction, Abolition and the beginnings of racial equality in this country. All three are splendid stories, splendidly told. If the book doesn’t garner much praise and many prizes I will be surprised, indeed. As an informative volume for beginners the book is without peer, and even for scholars deep into the arguments Huebner discusses, there is likely to be much on offer.

At first blush, it might appear that Huebner has, essentially, affirmed what now passes for politically correct conventional wisdom on the period – to wit, that Lincoln was a heroic martyr to the cause of freedom, and that the Radical Republicans who passed the Reconstruction Amendments and supervised military rule over a defeated South, were similarly heroic in their defense of the rights of African Americans. Huebner’s sympathies do often seem to lie with the Lincoln and the Radicals, and he appears to regard the abolition of slavery, and the crushing of the southern secession by force of arms to have amounted to a second American Revolution, and a noble one at that. But Huebner is too good a historian for his work to be characterized so simply. He quite sympathetically presents the arguments of the South, even the Southern slaveholders, and he builds a powerful case for the original 1787 Federal Constitution to have supported not only the ownership of human beings by others (this is pretty obvious even from the text of the document, though the word “slavery,” of course, is never mentioned), but also to have forbidden the centralizing actions, and the ignoring of the Civil Rights of Southerners and Lincoln critics, in which the Radical Republicans engaged.

Indeed, it is difficult, if not impossible, to come away from Huebner’s book and not understand that this “Revolution” of which he speaks was a profound alteration in the Constitution, not only by the Reconstruction Amendments, but by a Civil War and horrific carnage that might conceivably have been avoided. While he doesn’t dwell on it, I think Huebner raises the question whether the approximately 700,000 lives lost in the conflict were worth the cost, or whether slavery could have been ended by peaceful means, as it was in most of the other Western nations in which it existed. There seems to be a hint that Huebner believes only war could have ended the practice, but given the fact that even the Southerners were eventually prepared to emancipate their own slaves to draft the into the war effort, it does appear that there were things more important to the South than the preservation of their “peculiar institution,” as Southern defenders of the “lost cause,” were wont to argue following the war. Indeed, while Huebner appears to conclude that by the end of the War it was clearly about the abolition of slavery, when the war began, and after, there were plenty of Southerners who argued that actually it was about State sovereignty, the [*145] appropriate interpretation of the Declaration of Independence, and the limited nature of the Federal government under the Constitution.

There is no question that slavery was an evil that needed to be eradicated, and there is no question that Lincoln and the Republicans managed to do just that, and thus our custom of venerating them. There was a time, however, when the defenders of the South, Robert E. Lee in particular, were thought to be equally noble (though current events seem to suggest that era is fading, and fading fast). Huebner, then, in his intellectual honesty and his comprehensive coverage of what was said and written by partisans North and South, offers insight that renders the usual current analysis a bit too facile. Those of us fairly long in the tooth can remember late in the nineteen-fifties when the Radical Republicans were still regarded as fanatics, and when there was a belief that had Lincoln really wanted to, he could have let the Southern states secede. We could go further, and remember that while memories are now eroding, there was a time when in the middle states the conflict was referred to (as Huebner does) as a “Civil War” or the “War Between the States,” but there were those in New England, for example, who referred to it as “The Rebellion,” and those in the deep South who conceived of it as “The War of Northern Aggression,” and, in our post-modern age, we can understand that there was truth in each of these characterizations.

One troubling irony flowing from this understanding is that the Declaration of Independence, whose ringing words that “all men are created equal,” appeared to offer the means of excoriating slavery, but its Lockean philosophy that those governed have the right and the duty to rebel if they believe their government is oppressing them, also justified Southern secession. The Constitution, as Huebner quite nicely demonstrates, and as Lincoln and Joseph Story believed, could be read to have created a new political order bottomed on popular sovereignty of the entire American people, a union perpetual and binding which individual states were not free to leave on their own motion. Still, the Constitution could just as easily have been read (as Jefferson, Madison, and Calhoun understood it) to have created a federal government of limited and enumerated powers which did not include what the South believed to be the unconstitutional actions of the President in wartime or the purported usurpations, such as the imposition of military rule over the South, by the federal legislature during Reconstruction.

And, while Huebner doesn’t treat the matter as explicitly as he might have, he nevertheless makes it impossible to avoid asking whether, if, as the North maintained, the South could not legitimately leave the Union, there were legitimate grounds for the Radical Republicans in Congress to withhold recognition of the rights to the federal franchise of those who fought for the South, or, indeed, for Southern representatives and senators to be barred from Congress until the conquered states agreed to the conditions imposed by the Radicals. At another level, then, Huebner forces us to ask the question whether the noble ends of the war – abolition and the beginning of the granting full citizenship, civil, political, and social rights to African Americans – justified the means (clearly unconstitutional actions, a transformed central government, unimaginable loss of life and suffering), if the noble aims might have been secured eventually otherwise. Lincoln was, of course, correct that ours was a nation “conceived in liberty,” but it was also a nation where the highest value was thought to be the rule of law, that, as John Adams wrote, ours was “a government of laws, not of men.” The rule of law ought to be understood as maintaining that the ends do not justify the means, and its abandonment is a prescription for tyranny. There is always a temptation for the executive, whether Jefferson, Lincoln, FDR, Obama, or Trump, to ignore our established legal institutions to accomplish what is sincerely believed to be a greater good. We rely on our courts, particularly the Supreme Court, to check unconstitutional conduct, but, as Huebner shows, even the Court can succumb to the politics of the moment, and fail to carry out its duties in accordance with what the Constitution demands, or, worse, an executive (as did Lincoln and Jackson) can simply ignore the courts.

[*146] This demonstrates the fragility of the rule of law in this country, although, comparatively speaking, the United States probably does as good as job as any other nation in remaining true to the ideals of our framers. How horrible it is when we fail to do that, and how easy it is to slip into such a pattern might be the ultimate powerful lesson from this fine book. The only thing that I thought curiously missing from Huebner’s treatment of Constitutional issues, something that a scholar such as he is, well-versed in the Supreme Court of the civil war and reconstruction era, could have helpfully offered, would have been a discussion of the LEGAL TENDER CASES.* That was another instance in which the Court, during the span of just two years, reversed itself on a key economic matter, and some attention to it might have buttressed even more Huebner’s analysis of Constitutional interpretation’s malleability during the period. But perhaps that would have moved the analysis into avenues a bit away from the principal focus on issues relating to African Americans and the Constitution and the Declaration, and so the omission may have been understandable. Perhaps a sequel might include this episode and other matters bringing the story of the intertwining of constitutional theory, federalism, race relations, and politics into the present.

*The LEGAL TENDER CASES refers to the following cases: HEPBURN V. GRISWOLD, 75 U.S. 603 (1870); KNOX V. LEE and PARKER V. DAVIS, 79 U.S. 457 (1871); and JUILLARD V. GREENMAN, 110 U.S. 421 (1884).

© Copyright 2017 by author, Stephen B. Presser.