Review of: Timothy S. Huebner, Liberty and Union: The Civil War Era and American Constitutionalism

Abstract

Review of: Timothy S. Huebner, Liberty and Union: The Civil M/ar Era and American Constitutionalism WILLIAM WIECEK The constitutional historian Timothy Huebner has set himself a daunting task in Liberty and Union: to recapitulate within a single volume three “historiographical streams” (p. x) of American constitutional development—a history of the Civil War (and its political antecedents), the constitutional impact of the war and its aftermath in Reconstruction, and African-American history of the era.1 Constitutionalism, as his title indicates, is his central theme: what it is, why it matters, and how it was understood by the American people, including AfricanAmericans and pro-slavery southern whites. Each of Huebner’s three foci merits book-length treat­ ment in its own right; blending all three into a coherent narrative for general readers is a challenge to virtuosity. Huebner pulls it off admirably. There are surprisingly few studies that cover exactly the same ground Huebner does, but they are all classics, which makes his achievement all the more impressive. A generation ago, Harold M. Hyman and William M. Wiecek brought out one of the few studies that replicates Huebner’s subject: Equal Justice under Law: Constitutional Development, 1835-1875 (1982), one of the four constitutional volumes of the New American Nation series. The entire corpus of Harold M. Hyman’s work, but principally A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (1973), is dedicated to the war and Reconstruction. Laura Edwards’s A Legal History of the Civil War and Reconstruction: A Nation of Rights (2015) is an important recent revision of the classical synthesis. All the other landmark studies cover only one part of Huebner’s story. Daniel Walker Howe’s Pulitzer Prize­ winning achievement, What Hath God REVIEW OF LIBERTY AND UNION 119 Wrought: The Transformation of Amer­ ica, 1815-1848 (2007), interprets the antebel­ lum era. David M. Potter’s The Impending Crisis, 1848-1861 (1976), another New American Nation series volume, brought the story up to the war. James McPherson’s Battle Cry of Freedom: The Civil War Era (1988) covered both the coming of the war and the war itself. William W. Freehling’s two-volume treatment of secession, The Road to Disunion: Secessionists at Bay, 1776-1854 (1990) and Secessionists Trium­ phant, 1854-1861 (2007) traced the southern component of the story. John Hope Franklin produced the magisterial account ofthe black experience in From Slavery to Freedom: A History ofAfrican Americans (1947, 8th ed. 2000). Don E. Fehrenbacher followed up his towering The Dred Scott Case: Its Signifi­ cance in American Law and Politics (1978) with his refutation of the neo-Garrisonian critique of the pro-slavery Constitution: The Slaveholding Republic: An Account of the United States Government’s Relations to Slavery (2001). Eric Foner’s Reconstruc­ tion: America’s Unfinished Revolution, 1863-1877 (1988, 2014) is the definitive one-volume survey ofthe war’s political and constitutional aftermath. Each of these books has framed the way that we think about the constitutional struggles of the Middle Period, providing the armature on which we structure interpretation and critique today. On purely constitutional matters, the Holmes Devise volumes of Carl B. Swisher (The Taney Period, 1836-1864 [1964]) and Charles Fairman (Reconstruction and Reunion, 1864-88 [1971, 1987]) were respectively dated and monumentally disappointing, and they have had little impact on our interpreta­ tion of the constitutional dimensions of the cataclysmic struggles of 1830-1880. Given this grand corpus of recent scholarship, our parlous times call for a synthesis that will make the constitutional learning of the last half-century accessible in the classroom and for public discourse. Huebner’s work traces the great constitu­ tional themes that have dominated scholarly inquiry since the 1960s. Foremost among these is his foregrounding of African-American experience in this era. He emphasizes African Americans’ contributions to the development ofconstitutional thought and doctrine, as what he calls “the black constitutionaltradition” (pp. 52, 61, 84, 136, 322-323, 419, and passim). With few exceptions (Franklin, Foner), con­ stitutional historians have slighted the contri­ butions of black antebellum thinkers and activists to the development of public law.2 Huebner explores the constitutional ideas...