Wednesday, March 14, 2007

Hamilton: New Book argues that U.S. Power to Confiscate Property Declined during Civil War

Daniel W. Hamilton, The Limits of Sovereignty: Property Confiscation in the Union and the Confederacy during the Civil War has just been published by the University of Chicago Press. Mark Graber gushes over the book at Balkinization, calling it a "model for other young scholars" and emphasizing that:
the book successfully advances an intriguing thesis. While the Civil War is normally understood as a time when federal power expanded, federal power to confiscate, in fact, contracted. Americans during the Revolutionary war confiscated property with little opposition (though courts after the war made limited efforts to restore property). Americans during the Civil War, however, bitterly fought over the extent to which government could confiscate and, in doing so, began to reconceptualize property rights in ways that would make way for greater constitutional protection for property after the war. I suspect a good many of us are going to have to revise a number of lectures to incorporate this material, which is not only scholarly but a fun read. Whatever you make of the general thesis, one I find largely convincing, The Limits of Sovereignty clearly demonstrates why students of American constitutional development must understand the confiscation debates of the Civil War and does so with polish and intelligence.

Alfred Brophy also likes it, and weighs in here.

Here's the press blurb:
Americans take for granted that government does not have the right to permanently seize private property without just compensation. Yet for much of American history, such a view constituted the weaker side of an ongoing argument about government sovereignty and individual rights. What brought about this drastic shift in legal and political thought?
Daniel W. Hamilton locates that change in the crucible of the Civil War. In the early days of the war, Congress passed the First and Second Confiscation Acts, authorizing the Union to seize private property in the rebellious states of the Confederacy, and the Confederate Congress responded with the broader Sequestration Act. The competing acts fueled a fierce, sustained debate among legislators and lawyers about the principles underlying alternative ideas of private property and state power, a debate which by 1870 was increasingly dominated by today’s view of more limited government power.
Through its exploration of this little-studied consequence of the debates over confiscation during the Civil War, The Limits of Sovereignty will be essential to an understanding of the place of private property in American law and legal history.