Constitutional Rights in a Common Law World
Subtitle: The Reconstruction of North Carolina Legal Culture, 1865-1874
By: Linda Ann Tvrdy
Publisher: [publisher not identified]
Published: 2013
Place of publication: [New York, N.Y.?]
Language: eng
Description: The Thirteenth and Fourteenth Amendments to the United States Constitution, which were ratified in the aftermath of the Civil War, abolished slavery, established national citizenship and made equality before the law a constitutional requirement. These national constitutional amendments brought revolutionary change to America's foundational law, but it was up to state and local legal actors to incorporate this change into the law that governed the everyday lives of Americans. The literature of Reconstruction legal history tends to place federal law, federal courts and federal legal actors at the center of the story. But in the nineteenth century, the federal judicial system was limited in its institutional capacity and its jurisdictional authority. State courts, on the other hand, were ubiquitous and possessed of expansive jurisdictional authority to hear cases arising under both state and federal law. Before the end of the nineteenth century, most Americans could spend their entire lives without encountering the federal legal system.

On the other hand, county courts and the common law legal culture in which they existed were an integral part of their daily lives. This dissertation focuses on the state of North Carolina, examining how the state's legal actors articulated the meaning of freedom and incorporated it into their common law legal culture during Reconstruction. Engaging with recent literature that reconsiders the importance of the common as an ideology and mode of governance, this dissertation argues that the common law conceptualization of rights stood in contrast to the abstract, individual rights embodied in the U.S. Constitution. Common law rights were contextual, relational, and hierarchical. Further, common law principles centered around creating and maintaining good social order rather than protecting individual rights. Because the common law dominated nineteenth century legal culture, North Carolina legal actors could not simply impose the principles of the newly amended U.S. Constitution onto the existing legal order.

Rather, to ensure their lasting legitimacy they had to integrate those principles into the existing common law legal culture. The process of integration began even before North Carolina ratified the Thirteenth Amendment. At the end of the war, Union army General John M. Schofield oversaw the administration of justice and the implementation of freedom in North Carolina through military commission proceedings over civilians. Even in these military tribunals the common law provided a common language and ideology through which northern military officials, North Carolinian citizens and North Carolina lawyers could contest the precise meaning of freedom. Once civilian courts resumed their authority, North Carolinians continued throughout Reconstruction to refine the meaning of freedom and to incorporate the new constitutional values in the language of the common law. By focusing on the local implementation of constitutional change, this dissertation sheds light on how Americans experienced emancipation and freedom in their everyday lives.

However, uncovering the common law context in which it developed aids our understanding of nineteenth century constitutional doctrine as well.
Notes: Department: History.

Thesis advisor: Eric Foner.

Thesis (Ph.D.)--Columbia University, 2013.