In The Beginnings by Richard Primus starts like this:
American constitutional law has never come fully to grips with the Civil War. A constitution is a system of government, and no system of government fulfills its basic purposes if it cannot settle divisive political issues by non-violent means. In other words, a civil war is a constitutional failure. In the American case, it may be said that the Civil War of 1861-1865 marked the catastrophic failure of the Constitution of 1787.
Given the enormity of the collapse, it is remarkable that American civic culture has not internalized any real sense that the Constitution failed. One reason, of course, is that the victorious North did not tear up the written Constitution and start completely afresh. But there are also deeper reasons why Americans have been reluctant to see the Civil War and Reconstruction as regime-changing events. Long after Appomattox, the issues of the Civil War remained explosive in American politics. The status of African Americans was still a fighting matter one hundred years later, and even today national political cleavages track the geography of the old sectional division. Many Americans romanticized the Confederacy right through the twentieth century, suggesting that they could not wholeheartedly endorse the results of the Civil War. To ground the modern constitutional order in the Civil War and Reconstruction, therefore, would be to build the republic on a foundation about which many powerful people were at best ambivalent.
To regard the Founding as the one true source of our Constitution, by contrast, offers a great deal of comfort. If we are the direct successors to 1787, it must be the case that nothing earth-shattering has intervened. Celebrating the Founding allows us to repress the memory of slavery, of early America's failure to deal humanely and peacefully with that problem, and of the mass bloodletting that followed. The desire to erase that awful memory has been prominent for more than a century, ever since waving the bloody shirt ceased to be an effective electoral strategy for Northern Republicans. Woodrow Wilson, the first Southerner elected president after the Civil War, spoke on the fiftieth anniversary of Gettysburg of "the quarrel forgotten." And when the world war that followed Wilson's expression of relief spawned a tendency among historians to see mass warfare as the pointless tragedy of a blundering generation, the idea that the Civil War could have been a heroically generative event became less attractive still.
I thought it was a review of America's Constitution : A Biography by Akhil Reed Amar, but it's more discussion than review. Having not read the book (but having had my curiousity piqued by it and another book, The Bill of Rights: Creation and Reconstruction, by the same author) I can only comment on the article.
It's a very thought provoking article.
Amar's constitutional theory is elegant, but it is significantly flawed. As a historical matter, his vision of Reconstruction is airbrushed to make it seem more democratic than it really was. And as a normative matter, democratic enactment cannot suffice to legitimate the Constitution, if only because of the passage of time. Regardless of the process by which the Constitution was adopted, today it compromises democracy by governing people who were unrepresented in its formation.
...The main glitch in the argument about republican forms of government, as Southerners protested at the time, is that most Northern states did not allow blacks to vote in 1865 and 1866. If race-based disfranchisement kept Alabama out of Congress, why could New Jersey sit there? Again following Sumner, Amar responds that disfranchisement in the North was of a different kind from disfranchisement in the South. In most Northern states, blacks constituted a tiny slice of the population. The disfranchisement of black voters in those states, though morally wrong, was not politically significant. In the South, however, blacks constituted more than a quarter of the population in every state. For Sumner, this meant that racial disfranchisement in Southern states made those more states oligarchies or aristocracies rather than republics. Amar echoes the claim, writing that "no truly 'republican' state circa 1865 had the right to disfranchise a quarter or more of its adult free male population."
Very long. Very recommended.
I do think it is interesting, however, that Primus quotes Woodrow Wilson's reference to the Civil War as the "quarrel forgotten" because Wilson's policies toward black Americans clearly revealed he felt that his policies were simply reflecting the national consensus and attitude toward Negroes. Wilson signed executive orders segregating federal employees and after screening "Birth of A Nation" in the White House recommended that others see it.