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A New Right to Property: Civil War Confiscation in the Reconstruction Supreme Court
Journal of Supreme Court History (2004)
  • Daniel W. Hamilton, Chicago-Kent College of Law

During the Civil War, both the Union Congress, in the First and Second Confiscation Acts, and the Confederate Congress, in the Sequestration Act, put in place sweeping confiscation programs designed to seize the private property of enemy citizens on a massive scale. This paper compares property confiscation in the Union and the Confederacy. It examines congressional debates, the social impact of confiscation legislation, and the interpretation of confiscation doctrine by the Supreme Court. I contend that the Civil War experiment with confiscation helped cause an important shift in American property ideology and constitutional law by accelerating the rise of liberal conceptions of individual property rights, forcing reconsideration of the legal status of slave property, and narrowing the scope of sovereign power over property. After the confiscation debates, the failure of land distribution in the South during Reconstruction was all but inevitable. In the North, an ideological debate that could have taken decades to unfold incrementally, case by case, was instead, under the pressure of war, compressed into a little more than a year. Congress ultimately passed confiscation legislation that reflected deep ideological divisions and made widespread confiscation nearly impossible. In the South, the resort to confiscation required the reassertion of a republican ideology, and the exercise of sweeping centralized power over individual property, that were almost totally at odds with the dominant trend in Southern legal and constitutional thinking before the war. Yet the new Confederacy, because it was locked in a struggle for its existence, drew heavily on a republican property ideology inherited from the American Revolution. The needs of the new Confederate state were so severe that this recessive ideological strain once again became dominant. The ideological importance of confiscation legislation drew the Supreme Court into the fray after the war. While the constitutionality of confiscation was upheld, its scope was narrowed to near-irrelevance. The Court eviscerated what remained of Northern confiscation, and legally erased Southern confiscation. Confiscation persisted in the Supreme Court for decades after the war, and Justice Stephen Field took the lead in articulating an emerging liberal consensus that legislative confiscation was illegitimate and unconstitutional.

Publication Date
December, 2004
Citation Information
A New Right to Property: Civil War Confiscation in the Reconstruction Supreme Court, 29 Journal of Supreme Court History 254 (2004).