Justice Accused: Antislavery and the Judicial Process , and: A Covenant With Death: The Constitution, Law, and Equality in the Civil War Era (review)

Abstract

354civil war history (pp. 332-333). This is certainly a bold attempt to disentangle ideological from economic, political, legal and constitutional factors in the sectional conflict. If there are any readers who are still inclined to be complacent about American history they will find this a disturbing as well as rewarding book. Stow Persons University of Iowa Justice Accused: Antisfovery and the Judicial Process. By Robert M. Cover. (New Haven: Yale University Press, 1975. Pp. xii, 322. $15.00.) A Covenant With Death: The Constitution, Law, and Equality in the Civil War Era. By Phillip S. Paludan. (Urbana: University of Illinois Press, 1975. Pp. xiv, 309. $11.50.) Until recently historians have generally viewed America's antislavery crusade and ensuing Civil War as the one great disruption in an otherwise stable constitutional tradition. The mid-nineteenth century was supposedly a period characterized by fiery abolitionists who challenged the sanctity of the enshrined federal Constitution and Congressional leaders who trampled over established legal barriers for the sake of war and reconstruction. Such an image has been under attack during the past decade, and the recent studies of Robert Cover and Phillip Paludan reflect this change. Both Cover and Paludan have emphasized the continuity, formalism, and conservatism of mid-nineteenth century legal thought. Neither view the William Lloyd Garrisons or Charles Sumners as the primary molders of constitutional doctrine but rather the Lemuel Shaws and John Norton Pomeroys, the men who refused to deviate radically from the norms of the legal profession or the precepts of antebellum political belief. Both examine the conflict between humanitarian ideals and legal traditionalism, and both declare traditionalism the victor. Cover focuses on the response to slavery during the decades prior to the Civil War, emphasizing the conflict between the libertarian dictates of natural law and the code of slavery embodied in positive, statute law. When interpreting the gradual emancipation and manumission laws during the early nineteenth century, antislavery judges were able to avoid the clash between positive and natural law by consistently rendering judgments favorable to the slave. During the 1840's and 1850's, however, judges found themselves torn between their moral abhorrence for slavery and the clearly stated constitutional requirement to aid in the recapture of fugitives . Jurists such as Joseph Story, Lemuel Shaw, John McLean, book reviews355 and Joseph Swan faced this moral dilemma, and Professor Cover analyzes their responses. Employing the theory of cognitive dissonance as developed by social psychologists, Cover demonstrates how each of these four antislavery judges sought to reduce the disturbing dissonance between morality and professional duty. According to Cover they did so through lengthy judgments which emphasized the social importance of upholding positive law and the Constitution despite moral dictates. For example, Justice McLean claimed that defiance of the Fugitive Slave Law "by the judicial powers, would undermine and overturn the social compact," and having raised the spectre of anarchy, he then proceeded to mechanistically apply statute law to the detriment of liberty. The responsibility for legal change, according to these antislavery judges, rested with the other branches of government, and the judiciary could do nothing but apply the will of Congress and the provisions of the Constitution. Thus traditional perceptions of the jurist's role checked the moral impulse toward change, and judicial restraint stymied radical reform. Paludan likewise emphasizes the adherence of mid-nineteenthcentury thinkers to established legal and constitutional norms. In his work he analyzes the writings of Francis Lieber, Joel Parker, Sidney George Fisher, John Norton Pomeroy, and Thomas M. Cooley and demonstrates the persistence of Jacksonian ideals during the Civil War era. Each of these men retained a belief in decentralized government throughout both the antebellum and postbellum periods, and each expressed doubts about the centripetal tendencies of Reconstruction policy. Moreover, none viewed the Civil War as essentially a crusade for racial justice but instead as a means for preserving the Union. They sought to perpetuate the decentralized Union of the Jacksonian era rather than introduce a national machine for insuring racial equality. Paludan thus analyzes the thought of a few representatives of the intellectual elite and concludes that the Civil War was "no second American Revolution." His is a traditional study, admirably...