This Article assesses the role of law and lawyering in time of war by examining how lawyers responded to and were affected by the Civil War and Reconstruction. Although the modern legal profession has its roots in the same time period (legal formalism, education in law schools rather than apprenticeships, Socratic instruction, bar associations, large firm practice, and a distinct brand of constitutional conservatism all emerge in the 1870s), historians of the legal profession have largely ignored the relationship between professional organization and lawyers' experience of the Civil War and Reconstruction.
Before the war period, many elite lawyers were committed to an ideal of professionalism that demanded direct engagement with matters of public concern. Lawyers who embraced the ideal were, as Joseph Story put it, "public sentinels," obliged not just to represent clients, but to defend the Constitution and the nation from lawlessness by helping to shape public opinion. Lawyers fulfilled this obligation not just by lauding the Constitution and rule of law values in public oratory, though this was a common practice, but by creating and disseminating a discourse that placed the authority of law at the center of pressing social questions.
During the Civil War and Reconstruction this professional ideal came to grief as legal discourse degenerated into a war of ideas over the constitutional contradictions opened by secession, unprecedented assertions of executive branch war powers, and often violent southern resistance to Reconstruction after Appomattox. Story's "public sentinels" set upon each other, threatening professional authority by exposing deep rifts in the profession about the legal status of events on the ground. Chastened and exhausted by this intraprofessional strife, elite lawyers gradually converged on a conservative view of the Reconstruction Amendments stressing constitutional continuity with respect to federalism principles and the irrelevance of federal law to the condition of blacks in the South. Central to this convergence was the development of organizational structures that provided collective, less directly political, venues in which to vindicate professional ideals and secure professional authority.
TABLE OF CONTENTS I. INTER ARMA SILENT LEGES ("IN WAR, THE LAW IS SILENT") II. ELIDING THE WAR AND RECONSTRUCTION EXPERIENCE A. Whiggish Accounts B. Neo-Marxist Accounts III. PROFESSIONALISM IN THE AGE OF JACKSONIAN DEMOCRACY IV. THE FAILURE OF LAW A. Constitutional Stalemate B. Rupture C. Constitutional Antimonies 1. Force/Consent: Secession or Lawless Rebellion? 2. Order/Liberty: The Doctrine of Necessity 3. Restoration or Reconstruction? 4. The Desire for Consensus V. PROFESSIONAL ORGANIZATION AND REDEMPTION CONCLUSION I. INTER ARMA SILENT LEGES ("IN WAR, THE LAW IS SILENT")
During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment. We approach the investigation of this case, fully sensible of the magnitude of the inquiry and the necessity of full and cautious deliberation. (1) This is Justice Davis writing for the majority in Ex parte Milligan just after the Civil War. Embedded in the paragraph are carefully placed assertions about the conditions necessary for reaching correct legal conclusions, and certain assumptions about what legal reasoning is and what it is not. Legal analysis, he tells us, is the exercise of reason unmoved by passion, ideology, fear; it is calm, cautious, deliberate, disinterested--at a remove from, even as it assesses, the legitimacy of power. Law is not power, on this register, but its keeper. Law is above power, both regulating it and deriving authority from independent sources.
But the paragraph also reveals a trace of relief that Milligan's habeas petition was not presented "[d]uring the late wicked Rebellion." (2) Relief because "[t]hen, considerations of safety were mingled with the exercise of power"--"feelings and interests prevailed" which might have inhibited "a correct conclusion of a purely judicial question." (3) The capacity "to form a legal judgment" might have been hobbled, or at least distorted, by "the temper of the times"--by the unbridled play of power in which the nation was consumed. (4) Power, Justice Davis concedes, consumes law. Only the end of hostilities, when public safety is assured, offers a proper opportunity for law to reassert its dominion.
The affirmation and concession are, to say the least, difficult to reconcile. Law is displaced by power and, at the same time, or only afterwards, above power. The concession of the subordination of law to power is all the more remarkable given what the majority goes on to hold in the case. In inspired prose, Justice Davis does not hesitate to extend the governing hand of law over the events of the Civil War--reaching back into the play of power and boldly affirming the authority of civil judicial process over military commissions and martial law. His now famous phrases are confident, ethereal, and, above all, reassuringly dismissive of the claims of naked power:
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. (5) The "laws and usages of war," he adds,
can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed ... no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life.... Congress could grant no such power.... Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish. (6) The opinion thus not only rescues Milligan from execution after summary trial by a military commission, it rescues law from power even as it concedes that, during the war itself, such an effort might not have been successful or even possible.
The concession of impotence is telling, a confession really, and a rare one coming from the Supreme Court in troubled times. Indeed, it is perhaps more accurate to say that the Court rescues law precisely because law was so violently displaced by the war--so perishable and helpless against the immediate demands of power the war presented. (7) If we accept the confession with the same conviction that we celebrate the holding, law is not above power so much as chasing after it. Yet this takes away the very reassurance offered by the holding and makes of the opinion a rather strange gift to civil liberty.
But it was a strange gift. It is no accident that, at the time, Justice Davis's ringing endorsement of civil liberty cheered southern sympathizers and opponents of Reconstruction more than the party and people who had won the war and were now trying to bring security for freedmen and order to the South. The law of civil liberties, in the temper of the time, took as much as it gave. (8)
There is a similarly strange gift in the Test Oath Cases, decided the same term and involving equally important questions about the legal tools available to wrest order and security from war. (9) Justice Field, writing for the majority in Cummings v. Missouri, goes out of his way to acknowledge that the severity of the test oath before him is a product of Missouri's attempt to rewrite its constitution, to remake its fundamental law, in the heat of fratricidal strife. (10) In the guise of setting mere qualifications for office, he writes:
The oath thus required is, for its severity, without any precedent that we can discover. In the first place, it is retrospective.... In the second place, the oath is directed not merely against overt and visible acts of hostility to the government, but is intended to reach words, desires, and sympathies, also. And, in the third place, it allows no distinction between acts springing from malignant enmity and acts which may have been prompted by charity, or affection, or relationship. (11) Still, Justice Field reminds us, the severity and patent unconstitutionality of Missouri's oath, the vengeance embedded in it, are understandable once one recalls
the struggle for ascendancy in that State during the recent Rebellion between the friends and the enemies of the Union, and ... the fierce passions which that struggle aroused. It was in the midst of the struggle that the present constitution was framed, although it was not adopted by the people until the war had closed. It would have been strange, therefore, had it not exhibited in its provisions some traces of the excitement amidst which the convention held its deliberations. (12) Thus, the Court, again at a relatively safe remove from the struggle and bloodshed, confidently asserts the dominion of law and civil liberties (here in constitutional prohibitions against bills of attainder and ex post facto laws) to rescue Cummings and the state from the too-fierce provisions of its own charter. Reassuringly invoking Chief Justice Marshall's reasoning in Fletcher v. Peck, (13) Field writes that "[i]t was against the excited action of the States, under such influences as these, that the framers of the Federal Constitution intended to guard." (14) Law mixed with passion, law made in the...