Timothy S. Huebner has produced a valuable study of American constitutionalism, a study that could do enormous good if people read it. Gracefully written, it is also lengthy and scholarly, which means that readers must possess two qualitiespatience and intellectual candorto appreciate the magnitude of Huebners achievement. <\/p>\n
Liberty and Union is remarkable for several reasons. It explores a wide range of themes in American history pertaining to the Civil War era, and it does so with a comprehensiveness that is almost encyclopedic. In the hands of a less capable author, this account might digress into meandering side trips. But that never happens here: Huebners mastery of the material and his synthesizing mind keep the book on track from start to finish. <\/p>\n
The general theme is the way our constitutionalism evolved in accordance with the underlying struggle over slavery. Two opposite constitutional cultures were at war: a pro-slavery culture that extracted from the Constitution a set of principles protecting the right to own slaves, and a countervailing culture that construed the Constitution in ways that upheld the principle of freedomfreedom for all. Huebner calls the outcome of this long-term struggle, an outcome largely determined on the battlefield, a constitutional revolution. The preliminary achievement of that revolution was the Thirteenth Amendment, which abolished slavery, overturned the Dred Scott decision, and made the Constitution an anti-slavery document. The revolution continued during Radical Reconstruction when Republicans drafted the Fourteenth and Fifteenth Amendments to elevate the status of former slaves. <\/p>\n
One of the most important issues raised by Liberty and Union is its challenge to key suppositions in the doctrine of originalism. The story Huebner tells about the nature of American constitutionalism is the story of a vigorous power struggle that validates some originalist notions while vitiating others. Our constitutional text was full of ambiguities from the beginning: It was, in many ways, a messy affair resulting from compromises whose coherence will always be open to challenge. And the draftsmanship of the Bill of Rightscomposed by James Madison and introduced in the First Federal Congressled to insoluble arguments regarding application. <\/p>\n
It is telling to observe that the very same words in Madisons Fifth Amendment were invoked later by partisans on both sides of the slavery debate: employed on the one hand by people like John C. Calhoun and Roger Taney to defend the extension of slavery into federal territories, and on the other by people like Salmon P. Chase to oppose such extensions of slavery. When constitutional text is as ambiguous as that (or as manipulable) how can anyone believe that a perfect rendition of such text is floating just over the conceptual horizon in some realm of pristine and crystal-clear Ideas? Perhaps there is a good deal of sense in the wistful old Tory idea that we might, after all, be better off with an openly organic constitution of the sort that evolved in Great Britain than we are with a single, much-amended document whose words can be endlessly construed this way and that, according to whatever ideology dominates the Supreme Court. <\/p>\n
Certainly the invocation of original intent will be relevant and cogent at times, but only power will deliver the results. In his 1860 Cooper Union speech, Abraham Lincoln developed a persuasive argument that the Dred Scott decision was laughable in light of the words and deeds of the Founders. But it was only the power of the Civil War Republicans to change the size and composition of the Supreme Court (along with the power to eventually push through the Thirteenth Amendment) that kept Chief Justice Taneys constitutionalism from corrupting our republic. And, of course, the power of Lincoln and his friends to win battlefield victories was handy as well. <\/p>\n
In any case, if more jurists found the time to read books like Liberty and Union a great deal of posturing in jurisprudence might be avoided. And our disputes would be far more candid. <\/p>\n
Richard Striner, professor of history at Washington College, is the author of Father Abraham: Lincolns Relentless Struggle to End Slavery. <\/p>\n
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The Slavery Debate and Our Evolving Constitution - The Weekly Standard<\/a><\/p>\n","protected":false},"excerpt":{"rendered":" Timothy S. Huebner has produced a valuable study of American constitutionalism, a study that could do enormous good if people read it. Gracefully written, it is also lengthy and scholarly, which means that readers must possess two qualitiespatience and intellectual candorto appreciate the magnitude of Huebners achievement. Continue reading