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The debate over the respective roles of republicanism and liberalism
in the early Republic is still a front-burner issue among legal
historians who argue over the extent to which early American property
law was typified by an ethic of community obligation and public
regulation (read republicanism) or individualism and limited state
control (read liberalism). Both sides to the debate agree that by
the end of the nineteenth century republicanism had faded from political
consequence and American constitutionalism was pervasively liberal.
The dispute is whether liberalism's dominance was established at
the Founding or whether republicanism exerted substantial influence
well into the nation's first century. In The Limits of Sovereignty,
Daniel Hamilton explores Civil War property confiscation for the
light it sheds on this question. The
republicanism/liberalism issue is not the only topic developed
by Hamilton. In discussing Northern property confiscation, Hamilton
recounts, as other historians have done, the role of the elected
branches of government. But he also gives us a seminal analysis
of the contribution of the Supreme Court. Hamilton's equally thorough
discussion of Southern property confiscation suggestively frames
it as part of the early development of the American administrative
state.
But most of all, Hamilton's analysis
of Civil War property confiscation revamps our understanding of
the sanctity of property in American law and the history of republicanism
as an influential governmental ethos. For Hamilton, a key tenet
of republicanism is that property rights are contingent upon "continuing
loyalty" to the community (2). Liberalism, in contrast, teaches
that because property is a pre-political and natural right, property
belongs to an individual regardless of his or her political commitments.
In Hamilton's view, the dominance
of republican notions of property account for the massive legislative
confiscation of loyalist property during the Revolution. He demonstrates
that many Civil War legislators—both in the North and the
South—drew from Revolutionary-era precedents in proposing
their schemes to confiscate the property of disloyal compatriots.
Not only did these legislators premise their position on republican
notions of property, but Hamilton asserts that in 1860 "the brief
for confiscation [was] easier to make than the brief against it"
(4). Other historians have asserted that the Northern proponents
of confiscation were driven by a fanatical vengeance to propose
confiscatory schemes that were clear violations of the Constitution.
Hamilton portrays them as sensibly grounded in a traditional,
more community-oriented, less individualistic ideology of property.
Other historians also have said
that the Union's failure to enact effective confiscation reflected
its pursuit of a policy of reconciliation and reunion. In contrast,
Hamilton asserts that ideology, rather than interest, was determinative
of the Union's ultimate decision not to impose Revolutionary-era
style confiscation on the Confederates. In making this argument,
Hamilton focuses on congressmen and senators from New England
who, despite the wishes of their constituents, cast the decisive
votes preventing the enactment of harsh measures. In 1862, when
the North was losing the war, when the rebels were confiscating
property owned by Northerners, and when the citizenry was demanding
retaliation, these legislators broke party ranks to vote down
effective confiscation laws. This crucial bloc of legislators
grounded their vote in the view that judicial condemnation, on
an inefficient case-by-case basis, was the only legitimate way
to seize a rebel's property. Because this bloc held the balance
of power, Hamilton argues that in refusing to confiscate rebel
wealth by legislative fiat, Congress "restrained itself on ideological
grounds" (58).
Hamilton persuasively argues that
the Union's refusal to enact effective confiscation legislation
was a significant, and perhaps transformative, event in the emergence
of liberal, property-rights-centered constitutionalism. As the
Union was moving toward divesting Southerners of title to their
most distinctive and important asset—their slaves—it
was disclaiming a traditional power that would have allowed it
to take more. These decisions, then, became starting points of
the post-war social and constitutional order.
It is important not to overread
Hamilton's claim. Because he studies only the Revolutionary and
Civil War eras, Hamilton cannot tell us when republicanism slipped
from dominance. It might have been at the Founding, or it might
have taken until the Civil War. Indeed the pro-confiscation position
may have represented a resurgence of an otherwise moribund ethos
under the stress of national calamity. Hamilton suggests that
the Civil War confiscation debates "led . . . to the
acceleration of new constitutional and ideological norms" (58),
but additional studies are necessary to establish an accurate
trend line.
By connecting Civil War property
confiscation to the republicanism/liberalism debate, Hamilton
gives us a more sympathetic understanding of the Radical members
of Congress who advocated general confiscation of rebel wealth
and situates Civil War property confiscation as among the salient
events that pushed liberal constitutionalism to unchallenged dominance
and republicanism into total eclipse. Hamilton's closely argued
book successfully links the Civil War with long-term trends in
American history.
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