The Rise and Fall of Transcendent Constitutionalism in the Civil War Era

62 Pages Posted: 3 Mar 2020

See all articles by Cynthia Nicoletti

Cynthia Nicoletti

University of Virginia School of Law

Date Written: March 3, 2020

Abstract

In the aftermath of the Civil War, American intellectuals saw the war itself as a force of transcendent lawmaking. They viewed it as a historical catalyst that had forged the United States into a nation. In writing the Fourteenth Amendment, Congress sought to translate the war’s nationalistic spirit into text. But in the eyes of many contemporary thinkers, the war’s centripetal energy was a double-edged sword. It could create a nation out of disparate parts, but it was also potentially uncontainable, divorced from the regular lawmaking process and beyond the control of human actors. As a result, many American jurists feared that the war could result in the complete destruction of American federalism and the erection of a system based on unitary sovereignty.


After the Civil War, the Supreme Court significantly narrowed the revolutionary potential of the Fourteenth Amendment, as generations of legal scholars have noted. What scholars have failed to appreciate, however, is exactly what the Court meant to do in its controversial opinion in the Slaughterhouse Cases. In Slaughterhouse and other post-war cases, the Court sought to provide a counterforce against the forces of transcendent lawmaking, intending to preserve the fundamental distinction between state and federal authority in the United States, which the justices feared might be entirely elided otherwise. To many Americans living in the aftermath of the Civil War, the Supreme Court’s decision to quash the radical potential of transcendent constitutionalism represented a welcome return to the ordinary operation of law in the United States.

Keywords: constitutional law, legal history, constitutional theory, federalism

Suggested Citation

Nicoletti, Cynthia, The Rise and Fall of Transcendent Constitutionalism in the Civil War Era (March 3, 2020). 106 Virginia Law Review __ (2020); Virginia Public Law and Legal Theory Research Paper No. 2020-23. Available at SSRN: https://ssrn.com/abstract=3547991

Cynthia Nicoletti (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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