Victory of Law: The Fourteenth Amendment, the Civil War, and American Literature, 1852--1867

254 Pages·2006·1.73 MB·English

by  Deak Nabers

Victory of Law
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Victory of Law
The Fourteenth Amendment,the Civil War,
and American Literature,1852–1867
deak nabers
The Johns Hopkins University Press
Baltimore
©2006The Johns Hopkins University Press
All rights reserved.Published 2006
Printed in the United States ofAmerica on acid-free paper
2 4 6 8 9 7 5 3 1
The Johns Hopkins University Press
2715North Charles Street
Baltimore,Maryland 21218-4363
www.press.jhu.edu
Library ofCongress Cataloging-in-Publication Data
Nabers,Deak.
Victory oflaw :the Fourteenth amendment,the Civil War,and
American literature,1852–1867/Deak Nabers.
p. cm.
Includes bibliographical references and index.
ISBN0-8018-8350-4(hardcover :alk.paper)
1.American literature—19th century—Political aspects. 2.Antislavery
movements in literature. 3.Antislavery movements—United States—
History. 4.Rhetoric—Political aspects—United States—History—19th
century. 5.United States.Constitution 14th Amendment. 6.United
States.—Politics and government—19th century. I.Title.
PS217.S55N33 2006
810.9(cid:1)358097309034—dc22
2005032109
A catalog record for this book is available from the British Library.
contents
Preface vii
Introduction 1
1 Victory oflaw:Melville and Reconstruction 19
2 Shadows ofLaw:Somersetand the Literature ofAbolition 47
3 Constitutional Disobedience:Thoreau,Sumner,and the
Transcendental Law ofthe 1850s 91
4 Legal Sentences:Hawthorne’s Sovereign Performatives and
Hermeneutics ofFreedom 132
5 John Bingham’s Poetic Constitution 173
Notes 199
Index 235
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preface
All persons born or naturalized in the United States,and subject to the
jurisdiction thereof,are citizens ofthe United States and ofthe State
wherein they reside.No State shall make or enforce any law which
shall abridge the privileges or immunities ofcitizens ofthe United
States;nor shall any State deprive any person oflife,liberty,or
property,without due process ofthe law;nor deny to any person
within its jurisdiction the equal protection ofthe laws.
U.S.Constitution,Fourteenth Amendment,Section 1
At one point in his collection ofCivil War poems,Battle-Pieces and Aspects ofthe
War(1866),Herman Melville elliptically and ironically describes the Union’s success
in defeating the Confederacy as a “victory oflaw.”1It is not hard to see why Melville
might have thought that the Union’s victory sounded in the domain oflaw,nor is it
hard to see why he might have had some reservations about thinking ofit as an un-
compromised vindication ofthe American legal order.The Civil War was indeed an
unusually legal military conflict.The Union’s war goals were initially articulated in
terms ofthe maintenance ofthe law:Lincoln called forth the militia in 1861not to re-
store the Union but “to cause the laws to be duly executed.”2And even after it became
clear that the North’s victory would involve changes in the nation’s legal order rather
than a mere restoration ofit,the champions ofthose changes tended to think ofthem
as extensions ofAmerican law as well as modifications ofit.To be sure,the fulfillment
ofthe Union’s antislavery agenda required extensive constitutional amendment,but
the Reconstruction amendments themselves express an emphatic commitment to the
law rather than a departure from it.Many commentators have noted that the phras-
ing ofsection 1ofthe Fourteenth Amendment,designed to secure “practical freedom”
for former slaves,3involves little more than the repetition ofother pieces ofAmeri-
can law;as its author,John Bingham,put it,“every word ofthis proposed Amendment
is today in the Constitution ofour country.”4And ifthis reaffirmation ofpreviously
enumerated constitutional principles transformed the shape ofthe American consti-
tutional structure,it did so in large part by extending that structure’s dependence
upon the law—by insisting on the relevance ofthe “due process oflaw”and the “priv-
ileges or immunities ofcitizens”to civil standing and civil rights in the nation.
All the same,Melville had good reason to think that there was something ironic
about the process whereby the Constitution came to count as a bulwark ofantislav-
ery legal principle.It is hard to reconcile Lincoln’s commitment to maintaining the
viii Preface
laws ofthe Union with his practice ofradically changing the legal landscape ofat least
halfofit.The positive laws secured by the preservation ofthe Union hardly seem iden-
tical to the higher laws enforced in the abolition ofslavery:the Union that Lincoln
wanted to maintain was,after all,emphatically not a union without slaves.In the
decades leading up to the Civil War,it was by no means clear that the abolition ofslav-
ery could fit so harmoniously into the American legal order as the Reconstruction
amendments would imply.Bingham’s notion that the civil freedom guaranteed in the
Thirteenth Amendment could be secured by something on the order ofa reassertion
ofthe nation’s already existing Constitution stood at a far remove from William Lloyd
Garrison’s notion that emancipation would require at least the evisceration of the
Constitution and maybe also the elimination oflaw itself—what he called “the eman-
cipation ofour whole race from the dominion ofman.”5This book seeks to explain
how a war of slave emancipation could become a “victory of law”—a victory of
legal process in general and American constitutional law as an expression of that
process in particular—by charting the reciprocal relationships between antebellum
American literature and the legal notions and arguments that were eventually estab-
lished as American law in the Fourteenth Amendment.The law of the Union’s vic-
tory,I suggest,was developed gradually and unevenly throughout the latter part of
the1840s and 1850s,and it was developed in American literature as well as in Ameri-
can courts,legislatures,and political debate.
The historical pedigree ofthe Fourteenth Amendment is extremely complicated.
It has been the subject ofintense,and often contentious,historical scrutiny.6My goal
is not to provide an exhaustive genealogy ofthe amendment,nor am I under the il-
lusion that the more limited genealogy I will provide will settle all ofthe outstanding
questions surrounding what Jacobus tenBroek has called the amendment’s “antislav-
ery origins.”7I seek only to provide something like the conditions ofplausibility of
Bingham’s constitutional vision.8My interest is in reconstructing the argumentative
infrastructure that made the Fourteenth Amendment conceivable,not the social and
political conditions that made it practical or desirable.Insofar as I explain why the de-
velopments considered here took place,I will do so largely in intellectual and legal
terms.I will focus on the way certain arguments addressed and confronted rival ar-
guments within a mutually acknowledged context ofthe American Constitution and
the Anglo-American common law.The result will be something like what Paul W.
Kahn calls an “internal”history of“reason within law”in the sense that it will be a his-
tory ofthe development ofarguments within a structure generated by a set ofexist-
ing legal forms and practices.9But there is at least one important sense in which it will
not remain exclusively an internal history—it will focus as much on the legal argu-
ments ofnonlegal actors as it will on the legal arguments ofjudges,legislators,and
Preface ix
the like.Chiefamong these nonlegal actors are writers,whose participation in the le-
gal developments I address was both vigorous and sophisticated.
The book develops one long continuous argument;consequently,the chapters are
not entirely self-contained units.Although my argument could be read out ofa wide
range ofworks from the 1850s and 1860s,I mean to show the depth ofthe literary en-
gagement with the legal developments I will be examining,not the breadth ofthat en-
gagement.My hope is to use intense and focused readings ofa few works to lay out
the broad parameters in which a wide array oftexts might be considered.Works that
play a prominent role in one chapter will thus frequently make cameo appearances
in other chapters.This tendency is especially pronounced with respect to Melville’s
Battle-Pieces,which is the subject of the first chapter and keeps popping up,like a
bad penny,throughout the remainder ofthe book.I give Melville’s Civil War poetry
such extensive attention in part because I think it is one ofthe few remaining unrec-
ognized masterpieces in the canon ofthe American Renaissance.But,such aesthetic
judgments aside,Battle-Pieceswill command our attention largely because ofits acute
grasp on the legal implications of the sectional conflict,the Civil War,and Recon-
struction.Few works can match the intense rigor with which it processes the signifi-
cance ofthe momentous upheavals caused by a civil war.Indeed,it is safe to say that
one hundred and forty years ofvigorous legal scholarship,careful historical exami-
nation,and important adjudication have not produced a more insightful commen-
tary on Bingham’s amendment than what is available in Melville’s poems.
Like many recent studies ofthe relationship between literature and law,this book
has a foot in two scholarly camps.Assessing the significance ofwhat Andrew Kull has
called Bingham’s “pleasant phrases”and measuring American literature’s contribu-
tion to their meaning will require extensive investigation ofa wide range ofpolitical
developments in the 1850s,10developments that in some cases no longer arouse much
interest in a historiography more concerned with cultural and social development
than the old themes of grand political history.I may be the only person left in the
academy who thinks that the Freeport doctrine was ofmomentous import in Amer-
ican history.But ifmy interests sometimes seem slightly anachronistic,I hope the new
light in which I cast them will restore some oftheir dormant appeal.And ifmy dis-
cussions sometimes veer far and wide from the immediate domain ofliterary history,
I hope they will reveal dimensions ofthe works I address which have otherwise gone
unnoticed.
The book’s trajectory is straightforward.The first chapter lays out the principal
terms of my analysis by placing Melville’s Battle-Piecesin the context of the poten-
tially uneasy relations between the Union’s two chiefaims in the Civil War—union
and emancipation.The conservative drive to save the Union would seem to stand in