Why It Mattered that Lawyers Dominated Politics on the Eve of the Civil War and After

There’s a constitutional crisis brewing in the United States. At the center of the maelstrom are a group of lawyers. Their names are familiar to everybody who follows the news: special prosecutor Robert Mueller; presidential legal advisor Rudy Giuliani, attorney general Jeff Sessions; and legal fixer Michael Cohen. They carry on combat in courts, in Congress, and in the media. But no one draws a sword. No one threatens secession. No blood is let, and none is likely to be shed. We expect nothing less from lawyers. We expect that they will find ways to resolve the crisis short of a civil war. 

Once upon a time, another group of lawyers stood at the center of our political life. They were James Buchanan and Abraham Lincoln, William Henry Seward, Edwin Stanton, Jeremiah Black, Howell Cobb, Alexander Stephens, and Robert Toombs. They too were entrusted with the safety of the nation, its commitment to a rule of law, and its legal processes for resolution of disputes. In this they failed, history and historians seem to agree. Their inability to compromise differences over slavery and states’ rights led to secession and the war that followed. They blundered into the most bloody conflict the nation has ever seen. That they were lawyers does not matter in this standard account. 

That account is wrong in its generality and in its particulars. It did matter that they were lawyers. It was their skill as lawyers that almost enabled them to avert secession and then to avoid war. It was their commitment to law as lawyers that restrained what could have been an even bloodier war. And most important, it was their vision as lawyers that guided the nation to a constitutional place far more democratic than existed before the conflict. The lawyers made the war. They limited the war. And they made the peace. 

On the verge of that peace, when Lincoln’s cabinet had all but reached the limits of its resilience, Salmon Chase, Charles Sumner, Gideon Welles, James Speed, and Seward, all lawyers, agreed that the peace must never return to the status quo antebellum. The old Constitution, to which Lincoln had clung in his First Inaugural Address, the Constitution that accepted the fact of slavery, must give way to a new Constitution that forbade the traffic in human bondage. Lincoln accepted that verdict. 

How had they arrived at that conclusion? As lawyers. In countless exchanges among the lawyers in the president’s office, on the floor of the Congress, and in the courtrooms of the United States, lawyers confronted the crisis as lawyers, believing— as they said— that in law there were solutions to the most basic of human problems. This was their legacy. Resolving disputes is what lawyers do, and the most lasting achievement of the lawyers in the Civil War era was turning that terrible conflict into a new and lasting regime of law. 

The basis for any lasting regime of law was the federal Constitution, to which the former Confederate states must once again pledge loyalty. A consensus at the start of the crisis that the Constitution limited the powers of the federal government fractured by the end of the conflict into two clusters of beliefs, one clinging to the old Constitution, with its states’ rights foundation, its limitation of all government, and its narrow idea of (whites only) liberty, and the other cluster opening, gradually, even hesitatingly, to a broader view of governmental roles and guarantees of civil rights and equality to all. Former Confederates and their allies in the North assumed that the regulation of the freedmen would be left to the individual states while advocates of the Civil Rights acts and the Reconstruction amendments glimpsed a Constitution that ensured equal protection for all. Lawyers’ elaboration of these two views over the long course of American constitutional theorizing and government activity goes on to this day.

In a nation conceived in law, the Civil War lawyers provided reassurance that the sacrifices of the war were governed not by chance, but by the rule of law. When abstract words like freedom, liberty, union, and rights did not always have clear applications, or meant different things to different people, the Civil War lawyers gave concreteness to abstractions. In times of trial, such specificity lent comfort and gave purpose to human action. A Civil War of the lawyers, by the lawyers, and for the lawyers helped to preserve, as one of those lawyers wrote, a “nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.”

Is this too starry- eyed a conclusion? Perhaps. After the Civil War, the idealism of the antebellum era reformers waned. The rule of law had triumphed in the suppression of secession, but the violence of White Leagues and lawless vigilante organizations like the Ku Klux Klan proved that the rule of law did not extend to the Southern countryside. Against such evil, even the best intentioned of the Civil War lawyers on both sides could not contend, but with peace, lawyers could do what no one else could— restate the importance of the rule of law. Black suitors in Southern courts did not automatically fail in their efforts. With the aid of white lawyers, and by admitting in court their dependence on white justice, black litigants won their suits more often then they lost. In courts and in political assemblages men paid homage to the return of law and order, and offered that, in the words of one Mississippi supreme court justice, the best friend of the black man was his lawyer. If the homage was sometimes only lip service, as the “Redemption” of white supremacy replaced the reform Reconstruction era, the influence of the lawyers did not wane. True legal equality did not follow the peace, but the law’s power to elevate American constitutionalism persisted. No longer could secession become an escape from the ideal of equality, nor would slavery blight the land. The Civil War lawyers in peace did what the Civil War lawyers in war had yearned to do— knit the nation together in obedience to law.