Book Review

During the past decade, historians interested in the process by which people shape and reshape their identities have posed fresh questions about historical memory. By arguing that memories are constructed rather than reproduced, historians have shed new light on conventional sources and topics and have shown how individuals, ethnic groups, political parties, and even nations as a whole, omit, distort, or reorganize their memories in ways that affect popular and personal understandings of historical truth.	1
In Reconstructing Reconstruction, sociologist Pamela Brandwein utilizes this approach to reexamine some of the most famous decisions of the United States Supreme Court and to show how individual justices' interpretations of historical events shaped the Court's institutional memory and jurisprudence for decades. In particular, she focuses on nineteenth-century Justice Samuel Freeman Miller's construction of the meaning of the American Civil War and how it subsequently effected the Court's interpretations of the Fourteenth Amendment.	2
Since the opening salvo at Fort Sumter, Americans have debated the causes and implications of the Civil War. Today, historians, economists, and laypersons still disagree about why the war was fought. It is hardly surprising, then, that Justice Miller's 1873 conclusion as to the origin of the sectional conflict remains controversial. In the Slaughter-House Cases, Miller wrote that "whatever auxiliary causes may have contributed to bring about this war, undoubtedly the overshadowing and efficient cause was African slavery." Having concluded that the war was fought over slavery, Miller then inferred that the intention of the framers of the Thirteenth, Fourteenth, and Fifteenth Amendments was to protect the former slaves. "No one can fail to be impressed with the one pervading purpose found in them all," Miller wrote of the amendments, "and without which none of them would have been suggested; We mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him" (The Slaughter-House Cases, 83 U.S. 36 (1873), at 68 and 71).	3
In her book, Brandwein lambastes Miller for not giving a much broader meaning to the war and the postwar amendments. The Civil War, she argues, was not just about slavery. It was about the civil rights of all Americans, white and black, slave and free. Antebellum white southerners' censorship of the mails, vigilante acts against abolitionists, and support of the Gag Rule precipitated a general crisis of liberty and caused a war that was as much about whites' rights as it was about slavery. When Justice Miller rejected this broader definition of the war's meaning, Brandwein contends, he helped to create an institutional memory of the Civil War that would shackle the Court's justices for almost a century.	4
Brandwein's innovative use of post-structuralist theory and her questions about historical memory bring original insights to the ongoing debates about Justice Miller's opinion in the Slaughter-House Cases and the meaning of the Fourteenth Amendment. Rather than simply accusing Miller of emasculating the Fourteenth Amendment's "privileges or immunities" clause--as many legal historians have done--Brandwein shows how Miller's interpretation of the Civil War's meaning shaped both his opinions and the opinions of many subsequent justices and legal scholars. Miller's constricted view of the purposes of the war amendments, moreover, cast a long shadow, a shadow that made twentieth-century jurists such as Earl Warren and Hugo Black look unduly activist. Had Miller adopted a broader view of the forces that led to the sectional crisis, Brandwein concludes, the Warren Court's Fourteenth Amendment decisions would not have been as controversial. Moreover, the famous scholarly debates between Charles Fairman and William Crosskey about that amendment--debates that many concluded Fairman won--might have been constructed and resolved differently.	5
Although Brandwein's approach is new and important, at times she falls into the same teleological traps that have plagued many previous discussions of Justice Miller and the Slaughter-House Cases. Scholars have long tried to explain why Miller and the other Republicans in the majority in Slaughter-House constricted the Fourteenth Amendment in a way that would ultimately limit the amendment's usefulness in securing African-Americans' rights. The conclusion many have reached is that Miller and his brethren had by 1873 abandoned the Radical Republicans' Reconstruction agenda and had accepted the Democrats' calls for a return of white supremacy in the South. Brandwein shares this view, contending that Justice Miller purposefully adopted the Northern Democrats' version of the causes, meaning, and effect of the war. Northern Democrats, she correctly points out, accepted that the war ended slavery but believed that little else had changed. They supported Andrew Johnson's Reconstruction policies and the infamous Black Codes. By linking Miller to the Northern Democrats' position, she includes him among those who "did not count ex-Confederate takeovers of political institutions in 1866 and racially motivated political violence as among the continuing problems of slavery" (140). Justice Miller, a vocal opponent of the Black Codes and one of the few Republicans who advocated hanging Jefferson Davis and other Confederate leaders after the war, would have been appalled by such a characterization.	6
Like many historians before her, Brandwein is placed in the paradoxical position of suggesting that Miller and the Republican members of the Slaughter-House majority were in reality closet Democrats and reactionaries, despite the fact that the Slaughter-House opinion is full of passionate language about the need to protect African-Americans' rights. While Brandwein agrees that this passionate language was more than "strategic obfuscation"--as some historians have labeled it--she nevertheless implies that it was mere window dressing on what was, in the end, a Northern Democratic polemic (62). She ignores the fact that in Slaughter-House Miller upheld a needed health regulation passed by Louisiana's biracial Reconstruction legislature. The regulation, furthermore, was being challenged by white butchers, butchers who were represented by John A. Campbell (a former Supreme Court justice and ex-Confederate who was waging a legal blitzkrieg against Louisiana's Republican government). Moreover, she does not acknowledge that Miller correctly feared that allowing white butchers to use the Fourteenth Amendment to protect economic rights would have made the Court "a perpetual censor upon all legislation of the states." By tying Miller to the Northern Democrats, and by discounting the powerful language about protecting black civil rights that the majority opinion in the Slaughter-House contained, she decontextualizes the case in a way that damages the persuasiveness of her argument.	7
Despite this flaw, however, Reconstructing Reconstruction offers a fruitful discussion of how the Court resolved the debates about what the Civil War meant. Miller's interpretation did indeed have profound, if unintended, implications for the Court's civil rights decisions and for future scholarly discussions. By exploring how and why the Court's institutional memory emerged, Brandwein poses innovative questions about the history of the Fourteenth Amendment and judicial decision making. In the process, she presents an important challenge to legal historians to look at the Supreme Court's history in new ways.	8
Michael A. Ross Loyola University New Orleans

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