The Post Civil-War Amendments as a Constitutional Revolution?

Abstract

This essay uses Constitutional Revolution as a vehicle for thinking about what happened constitutionally in the United States during the Civil War and Reconstruction. Gary Jacobsohn and Yaniv Roznai correctly observe that a constitutional revolution took place in the 1860s, even though the Constitution of the United States was amended rather than replaced. The constitutional order in the United States after the Civil War was radically different than the constitutional order in the United States before the Civil War. The postbellum constitutional order was unambiguously antislavery and far more racially egalitarian than the antebellum regime. Constitutional Revolution’s brief discussion of that constitutional revolution is nevertheless problematic. Jacobsohn and Roznai emphasize developments in constitutional law when examining the changes in constitutional identity they believe constitute a constitutional revolution. This focus on constitutional texts and judicial decisions requires Jacobsohn and Roznai to referee previous conflicts over the constitutional identity of the ancient regime in order to determine whether political actors have engaged in a distinctive constitutional revolution or merely implemented the commitments underlying a previous constitutional revolution. Tinkering with Constitutional Revolution’s treatment of disharmonic constitutions avoids this incongruity and promises a fuller understanding of the constitutional politics underlying constitutional revolutions. Constitutional revolutions require a fundamental change in the structure or substance of political struggles to control the official constitutional law of the land. A constitutional revolution occurred during the Civil War and Reconstruction, from this perspective, because that era witnessed a revolutionary shift in the terrain on which political movements contested racial issues.

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