The Civil War and Constitutional Change

Joey Fishkin has put up “The Dignity of the South,” an elegantly-written essay on the constitutionality of the Voting Rights Act. Fishkin argues, essentially, that the equal-dignity arguments against the Act hark back to the Dunning School’s dim view of Reconstruction, which in turn rely on antebellum notions of state sovereignty that have been extinguished– as a legal matter– by the Civil War and Reconstruction.

I am not sure that there ever was an equal-dignity principle that would apply to the Act. (The Court’s opinion in Northwest Austin, by the way, never uses the word “dignity.”) But if there was one, as a legal matter, I am not so sure that the Civil War and its aftermath should be understood to delete it. The constitutional consequences of the Civil War and Reconstruction are a complicated thing, but at a minimum I think there is serious force to the following view:

[F]or the Civil War’s victors, legal continuity was generally a key part of the narrative of the Civil War and Reconstruction. President Lincoln had
justified the war by arguing that the states had never left the Union. Even the Reconstruction governments preserved a fiction of legal continuity with future and subsequent regimes. To be sure, there were plenty of radicals who argued that secession justified a major break in the legal order, but their views were frequently marginalized in practice, for better or worse. There is thus a case for seeing Civil War-era constitutional change strictly in formal or technical terms.

William Baude, Rethinking the Federal Eminent Domain Power, 122 Yale L.J. 1738, 1813 (2013).

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