Monday, March 28, 2011

The Survey: Wars & Transformations

In his Preface to Volume II of the Transformation of American Law, Morton J. Horwitz mysteriously notes that while Vol. I ended in 1860, Vol. II begins in 1870, because "only a separate book can do justice to the profound significance of the Civil War in American legal history." What, precisely, was that significance? Primary source collections stress the Emancipation Proclamation, an obvious transformation, as well as Lincoln's suspension of habeas corpus, Ex Parte Merryman, Ex Part Vallandigham, etc ... (these cases make for a nice war/law theme on suspensions of rights that can be revisited through World War I, World War II, the early stages of the Cold War, even the War on Terror). Another transformative theme is captured by Heather Cox Richardson in The Greatest Nation of the Earth: Republican Economic Policies During the Civil War, showing how the 37th Congress promoted a dramatic expansion of federal power, including federal promotion of the Transcontinental Railroad, federal sanction of a national currency, and federal promotion of land development through the Homestead and Land Grant Acts. On the first, the question of railroads opens a potential lens through which to view much of the post-Civil War period, including labor activism (the Strike of 1877), vigilantism (see David Thelen's excellent recovery of Jesse James's popular train-robbery campaigns in Missouri), the rise of Tort Law, and finally the question of legal segregation in the South (Plessy v. Ferguson was, after all, a train case). Another thread emerges with Republican monetary policy, particularly the creation of a national currency, which provides a nice precursor to Progressive Era Republican interventions in the economy (TR's support of Anti-Trust, the Federal Income Tax, and so on), as well as the Democratic Party's interventions during the New Deal (all topical given the 2008 bail-outs). Finally, Horwitz's theme is most directly picked up by Dan Hamilton in The Limits of Sovereignty: Property Confiscation in the Union and the Confederacy During the Civil War. Hamilton's book raises an interesting counter-point to Richardson, which is that the Republican Party was ultimately bounded by the war, resulting in the tragic demise of land redistribution schemes in the South and a new emphasis on the right to private property on the Supreme Court. Here's another nice tie-in to the post-War era, including a foundation for discussions of property jurisprudence through the Progressive and Modern Eras. Any other Civil War themes that Horwitz might have been referring to?

Photo credit: Chicago U. Press