The Discourse of Law in Time of War: Politics and Professionalism During the Civil War and Reconstruction
Publication Date:January 01, 2005
This Article assesses the role of law and lawyering in time of war by examining how lawyers responded to and were affected by the Civil War and Reconstruction. Although the modern legal profession has its roots in the same time period (legal formalism, education in law schools rather than apprenticeships, Socratic instruction, bar associations, large firm practice, and a distinct brand of constitutional conservatism all emerge in the 1870s), historians of the legal profession have largely ignored the relationship between professional organization and lawyers' experience of the Civil War and Reconstruction.
Before the war period, many elite lawyers were committed to an ideal of professionalism that demanded direct engagement with matters of public concern. Lawyers who embraced the ideal were, as Joseph Story put it, "public sentinels," obliged not just to represent clients, but to defend the Constitution and the nation from lawlessness by helping to shape public opinion. Lawyers fulfilled this obligation not just by lauding the Constitution and rule of law values in public oratory, though this was a common practice, but by creating and disseminating a discourse that placed the authority of law at the center of pressing social questions.
During the Civil War and Reconstruction this professional ideal came to grief as legal discourse degenerated into a war of ideas over the constitutional contradictions opened by secession, unprecedented assertions of executive branch war powers, and often violent southern resistance to Reconstruction after Appomattox. Story's "public sentinels" set upon each other, threatening professional authority by exposing deep rifts in the profession about the legal status of events on the ground. Chastened and exhausted by this intraprofessional strife, elite lawyers gradually converged on a conservative view of the Reconstruction Amendments stressing constitutional continuity with respect to federalism principles and the irrelevance of federal law to the condition of blacks in the South. Central to this convergence was the development of organizational structures that provided collective, less directly political, venues in which to vindicate professional ideals and secure professional authority.