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Inventing American ExceptionalismThe Origins of American Adversarial Legal Culture, 1800-1877$
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Amalia D. Kessler

Print publication date: 2017

Print ISBN-13: 9780300198072

Published to Yale Scholarship Online: May 2017

DOI: 10.12987/yale/9780300198072.001.0001

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PRINTED FROM YALE SCHOLARSHIP ONLINE (www.yale.universitypressscholarship.com). (c) Copyright Yale University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in YSO for personal use.date: 23 October 2019

The Freedmen’s Bureau Exception

The Freedmen’s Bureau Exception

The Triumph of Due (Adversarial) Process and the Dawn of Jim Crow

Chapter:
(p.263) 6 The Freedmen’s Bureau Exception
Source:
Inventing American Exceptionalism
Author(s):

Amalia D. Kessler

Publisher:
Yale University Press
DOI:10.12987/yale/9780300198072.003.0007

Chapter 6 examines the Freedmen’s Bureau courts as an exception to the otherwise prevailing failure of conciliation courts to take root in American soil. Created to integrate the newly freed African-Americans into Southern society and to reconfigure the latter on free labor foundations, the Bureau courts were understood by Northern architects of Reconstruction to be a kind of conciliation court. Long promoted as able to attenuate market-driven conflict and restore communal harmony, the conciliation court seemed tailor-made for the Reconstruction South with its mounting tensions between white landowners and penniless, recently freed slaves. But the free labor values that Northerners viewed as self-evident truths that Bureau courts (qua conciliation courts) would simply help the parties to recognize were seen by white Southerners as foreign values, imposed on them by force. Appealing to the defense of adversarialism developed before the war, Southerners denounced the Bureau courts as un-American. With the Supreme Court’s decision in Ex parte Milligan (prohibiting military tribunals from trying civilians) and the ratification of the Fourteenth Amendment, their campaign to dismantle the Bureau courts and to preserve their racial supremacy would prove victorious. The restoration of adversarial justice would thereafter be framed as a triumph of due process.

Keywords:   Freedmen’s Bureau courts, American Freedmen’s Inquiry Commission, Reconstruction, Robert Dale Owen, Oliver Otis Howard, Jeremy Bentham, French labor courts, Ex parte Milligan, due process, adversarial procedure

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