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The Constitutional Origins of the American Civil War

by Michael Conlin Book Reviews

Origins of the American Civil WarIn the last year of the Civil War, Lincoln publicly reflected in his second inaugural address that both sides “read the same Bible, and pray to the same God; and each invokes His aid against the other.” In The Constitutional Origins of the American Civil War, the author portrays a legal culture wherein one could just as easily substitute the word “constitution” in Lincoln’s ruminations. Conlin shows how the Framers’ construction of the United States’ not-quite-sacred text made the war foreordained from the foundations of the country.

The discussion of that Constitution’s meaning foreshadowed debates still present today. For instance, both slaveholders and abolitionists premised their arguments on competing constitutional rights. For slaveholders, the rights at stake were their alleged property rights in the slaves. For abolitionists, democratic rights related to representation were preeminent. Both North and South could cite the Constitution section by section. The so-called “fugitive slave” clause could be argued to be a pro-slavery clause of the Constitution, or the fact that it did not use the word slave could lead to an argument that it was an anti-slavery clause. Such examples abound.

Both could point to a Constitution that actually supported their cause because the Constitution was a compromise document. Conlin forces readers to recognize that many of the cherished features of our Constitution, which we point to as foundations of our liberty, were also compromises that ensured slavery could remain in the Union. Checks and balances protected republican government and southern slavery, as did the enforced legislative parity in the Senate. Legislation protecting this balance of power, like the Missouri Compromise, took on nearly constitutional status.

This balance weakened as the country expanded. Immigration from European countries to the North increased its population and consequently its hold on the proportionally-allocated House. The breakdown of parity in the Senate came with admission of western states; California’s admission spelled doom for that balance. Southern states consequently sought to impose their legal agenda on the rest of the country — attempting repeatedly to capture the presidency and the Supreme Court, and eventually seeing the fruit of their efforts, notoriously, in Dred Scott. Upon Lincoln’s election, southern states could point to a “broken promise” of alternating between northern and southern mixed presidential tickets — a constitutional custom breached. Compromise is what kept the union together.

But what of that compromise? Northern democrats played a part as slaveowners’ allies because of their desire to promote unity and constitutional government. Extremists on both sides drove the county apart and toward war, but would slavery have ended without the abolitionists’ co-opting of the Republican Party? The Constitution that created these impasses, ironically because of the compromises that had been put in place to break impasse. Ultimately, it was the Constitution itself that changed as a result of the war, although not through its own internal mechanisms for amendment, but because of war and bloodshed, as each read their own Constitution and invoked its laws therein derived against the other. For its historical analysis as well as its ability to pose these difficult legal and moral questions of the relation between compromise and justice to the reader, Conlin’s book is excellent.

Ryan G. Tindall of Winter Garden is a member of The Florida Bar.