The Power to Do What Manifestly Must Be Done: Congress, the Freedmen's Bureau, and Constitutional Imagination
58 Pages Posted: 13 Sep 2007
This article considers the example of one of the odder entities in American legal history: the Bureau of Refugees, Freedmen, and Abandoned Lands. This agency, more commonly called the Freedmen's Bureau, existed from the late days of the Civil War through the end of Reconstruction. It did extraordinary, unprecedented things. It spent all of its days in turmoil, beset by enemies on many sides. This new federal agency, given a broad mandate to remedy some of the evils of slavery, aroused opposition among border state politicians, former slave owners, and other defenders of the status quo. More surprising are the concerns raised even by some of its supporters in Congress, concerns over not only the practical nature of its operation but, importantly, the constitutional bases on which it rested. The Bureau functioned in a wholly new frontier of American law. For the first time, the federal government would operate directly in the personal lives of a large body of citizens: it would review private contracts, settle labor and property disputes, operate schools, and even serve as a licenser of marriages. These activities were virtually, if not entirely, unknown before - and some of them since - within what the Framers had called the general government. This article examines the arguments in Congress over that extension of federal power. It reviews the arguments of opponents and supporters as to the appropriateness of the Bureau within our constitutional system. It attempts to derive some constitutional principles from that debate which may be of value for the future as we continue our endless dialogue about the nature of the federal system.
Keywords: Reconstruction, Congressional Authority, Freedmen's Bureau
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