EQUAL JUSTICE UNDER LAW: Constitutional Development, 1835-1875 by Harold M. & William M. Wiecek Hyman

EQUAL JUSTICE UNDER LAW: Constitutional Development, 1835-1875

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KIRKUS REVIEW

The Marshall Court is commonly thought to have decided the cases that set the Supreme Court and the federal government on their joint way; but the period surveyed here, centered on the Taney Court, was also of great importance to the shaping of that relationship, Hyman (History, Rice) and Wiecek (History, Univ. of Missouri) demonstrate. And the big issues--slavery, states' rights, Reconstruction--were only the most salient of the problems confronted. Particularly during the middle of the century, the Court established the bases of American commercial and contract law, giving business enterprise every advantage for growth and prosperity. In the 1850 case of Brown v. Kendall, for instance, the Chief Justice articulated the principle that in a case of unintended injury, liability could only be established by establishing fault; only negligence would count for unintended injury, narrowly circumscribing the area of fault. Such decisions, which safeguarded new industries using new technologies, stirred reformers to seek a codification of common law; but in the 19th century these efforts came to naught. On slavery, Hyman and Wiecek argue that (the Dred Scott decision notwithstanding) most of the court decisions were aimed at holding to a status quo--thus forcing the issue from the courts, to be fought out in the political arena. When the Civil War started, they point out interestingly, the Confederacy had the problem of determining which laws, and what courts, would govern in the seceded states. But the Confederacy never formed its own Supreme Court, with the result that disputes between the southern states and the Confederacy went unresolved. Hyman and Wiecek are laudatory toward Lincoln, whose actions abrogating sections of the Constitution on the basis of a national emergency--like the suspension of habeas corpus--they regard as legitimate and executed with considerable care (if arrested for anti-government sentiments, the guilty party could secure release by promising to keep quiet in the future); they draw a comparison with Richard Nixon, who they claim went too far. This is an argument of degree, and not entirely convincing. In a legal argument regarding Reconstruction, the authors argue that the Fourteenth Amendment, extending due process to all citizens, is a direct outgrowth of the Thirteenth, which banned slavery, and was required only because the intention of enforcement already inherent in the Thirteenth was ambiguous. The last lengthy section dealing with this interpretation may not stir everybody. For the most part, though, this thoroughgoing, unfusty addition to the New American Nation series should be of interest to the history-minded in general.

Pub Date: March 25th, 1982
Publisher: Harper & Row