56 Pages

The Constitution in the Supreme Court: Civil War and Reconstruction, 1865–1873

WithDavid P. Carnet

This chapter considers an event as cataclysmic as the Civil War was bound to place considerable strain on the Constitution, and the brunt of the judicial burden of putting it back in shape was borne in the decade following the War itself—the period. The merits were plain from the words of the Constitution. Texas v. White finally established both the illegality of secession and the validity of the basic Reconstruction principle. The text of Constitution makes this conclusion appear obvious; but a moment's reflection should reveal that, if taken literally, the exceptions clause provides Congress with a ready means of frustrating Supreme Court review of its acts. The chapter argues that whether Congress may withdraw jurisdiction of entire constitutional cases depends upon whether one emphasizes those passages in Marbury v. Madison insisting that judicial review is a fundamental check on other branches or those describing it merely as a consequence of the judge's own obligation not to violate the Constitution.