Facing Federalism(s) From Indian Country

Guest Blogger

For the Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024).

 Greg Ablavsky[1]

Though my graduate school advisors told me that “filling a gap” was not a good justification for a project, Alison LaCroix’s highly significant, wonderfully crafted new book shows that they were wrong. We have lots of scholarly discussions of early American constitutional law, including key Supreme Court decisions that are staples of the law school curriculum.  (When I took over Lawrence Friedman’s American legal history course, he joked that I was required to teach Charles River Bridge). But there was no thorough scholarly volume that wove these diverse cases and strands into a single argument about the nature of federalism in the early republic—until now.[2]

In their defense, what I think what my advisors really meant was that a work needs to do more than just fill a gap; it needs to meaningfully intervene in the scholarship. But LaCroix’s book does that too, and does it beautifully. There is so much to admire in how this book redeems the early nineteenth century from its status as, in LaCroix’s evocative phrase, the “flyover country” of American constitutional history.  (I am also appreciative of LaCroix’s effort to use “Interbellum Constitution” to describe this era in lieu of the teleological “antebellum,” but revising this term does open a can of methodological worms. What about the Mexican-American War or the three Seminole Wars, to note only a couple of the many “bella” that this period was not “inter”?).  In LaCroix’s adroit hands, William Wirt goes from a bit player in specific legal controversies to the Forrest Gump of nineteenth-century constitutional dispute; the material culture of early America receives serious and perhaps unprecedented attention in a legal history; and entire forgotten worlds of jurisprudence are recovered, with LaCroix offering what seems to me the authoritative history of debates over “concurrence” and, with due deference to Jack Balkin, over the complex historical meaning of “commerce.” Perhaps most admirable, given my own hobbyhorses, is how LaCroix successfully writes a deeply doctrinal history of the early United States in which enslaved Africans and Native nations are not bit players but core to the making of constitutional law, including through some of those communities’ own voices and perspectives. 

Yet mutual (I hope) admiration societies are boring. Scholarly argument is interesting, and likely more useful in moving scholarship forward. LaCroix herself notes that we disagree, and I think the points where we differ fruitfully underscore the stakes of how we narrate the meaning of early American federalism. 

Core to LaCroix’s project is the insistence on the “many varieties” of interbellum federalisms, plural. She repeatedly tells us that early debate over federalism transcended the federal-state binary, producing creative approaches to jurisdictional conflict and overlap that current jurisprudence has lost. 

All this strikes me not only as true, but arguably central to the comparative advantage that historians bring to the study of law. The world of the law of the past is always less familiar, less easily assimilated within conventional categories, than present-day legal scholars portray, and LaCroix readily proves this point. 

Yet the problem with envisioning law principally as a “zone of contestation,” in Dirk Hartog’s evocative phrase—a perspective I have routinely invoked myself—is that some legal arguments prevail, in the sense that they shape events, and some lose. Which arguments succeed and fail, and why, seems to me an equally significant historical question to address. 

Here, let me turn to what is perhaps my comparative advantage in this symposium—my knowledge of the jurisdictional contest that swirled around the Cherokee Nation in the 1820s and ‘30s, to which LaCroix devotes two chapters. LaCroix sees the Cherokee leaders as savvy creators of a legal vision that she terms “fractal federalism”—an insistence that the Cherokee Nation “was a nation within a state that was itself within a different nation.” 

I wholeheartedly agree with LaCroix about the creativity of the legal arguments advanced by Cherokee and other Native nations’ leaders during the so-called Removal Crisis. (Other scholars have persuasively argued that “mass deportation” or “ethnic cleansing” are more apt descriptions than the euphemistic “removal”).  Part of where she and I diverge in fact concerns terminology. I would not describe the Cherokee vision as a form of federalism, because that defines Cherokee aspirations principally in terms of Anglo-American political orderings. What the Cherokee Nation sought was, in my read, a form of independence distinct from federalism. For Cherokee leaders to concede even that the Cherokee Nation was “within” the United States represented a loss, since a prior generation of Indigenous leaders had insisted that their nations were fully separate sovereigns—which, after all, was Nation’s litigation position in Cherokee Nation v. Georgia. And whether the Cherokee Nation was “within” the territory of Georgia, or any other state, was arguably the core legal dispute of Removal.  “[T]he Cherokees are not foreigners, but original inhabitants of America; and . . .  they now inhabit and stand on the soil of their own territory,” a Cherokee delegation informed federal officials in 1824. “[T]hey cannot recognise the sovereignty of any State within the limits of their territory.” 

But the more fundamental divide between us, I think, centers on whether federalism created or limited space for the Cherokee Nation, and for pluralism more generally. Success and failure are debatable propositions, but, as LaCroix notes, “[I]n an important sense, the Nation lost its battle against Georgia,” since it was forcibly deported from its homeland. But, she continues, “that fact does not mean that [Cherokee leader Elias] Boudinot and his compatriots were wrong, or that their arguments were ungrounded or wildly improbable.” I would go further: for most legal thinkers today, the Cherokee arguments are pretty hard to contest, and in fact Native immunity from state regulation within Indian country is now largely federal law. And, of course, there is compelling evidence that Cherokee arguments were not “improbable” at the time either, since they won in the U.S. Supreme Court in Worcester v. Georgia, only to be mired in what LaCroix aptly describes as the “tangled” jurisdictional arrangements of the early republic. State Removal-era arguments for sovereignty, by contrast, do now seem “wildly improbable”: what current lawyer would argue, straight-faced, that the existence of an Indigenous nation violates the Constitution’s prohibition on erecting new states within existing ones? 

Why, then, did the states’ dubious legal arguments ultimately prevail in dictating events? In large part, it was because, unlike Native nations, states were themselves constitutive of the United States, helped select national leaders, and so could control the federal government’s actions. Andrew Jackson had attacked Cherokee sovereignty since his earliest days as Tennessee’s first congressman and later senator; it was hardly surprising that, as president, he wholeheartedly embraced the states’ constitutional arguments, however questionable. But the outcome also reflected the fact that many in early national elite did not recognize or embrace the pluralism that LaCroix rightly identifies within the early United States. The most able chroniclers of states’ Removal-era arguments have traced how, when it came to sovereignty, many politicians and judges believed passionately in the state-federal binary, and regarded alternate claims to authority and jurisdiction as suspect. Lisa Ford stresses how, by the 1830s, white settlers “could no longer imagine plural sovereignty in their local contexts,” instead embracing what she terms “settler sovereignty,” while Deborah Rosen traces how state judges erased Native peoples’ independence and instead solely “examined how the states’ actions fit within federalism’s division of powers between the federal and state governments.” 

In short, for many prominent politicians and lawyers in the early republic, federalism functioned as an anti-pluralist doctrine that they wielded against those they deemed “rivals of sovereignty within [their] territories,” in the words of John Quincy Adams. That doesn’t mean that they were right either about the law or about how governance actually functioned in the early United States; LaCroix’s nuanced, pluralistic account is almost certainly descriptively more accurate. But these leaders also had considerable power—enough to use violence to profoundly reshape the world to better fit their ideology. 

Perhaps LaCroix’s impressive volume will help push back against such accounts by giving us a better, truer view of the historical complexities and contingencies of federalisms, plural. I confess, though, I am pessimistic about the prospect of better histories displacing legal perspectives both past and present that are, at the end of the day, ideological. Viewed from Indian country, federalism today continues to serve as a powerfully anti-pluralist doctrine, as the Court’s recent decision in Castro-Huerta—with its striking repudiation of Worcester v. Georgia—underscores. The Cherokee Nation’s fractal vision remains the more accurate account of how authority, jurisdiction, and sovereignty function within Native territory. But for many powerful people, that perspective remains anathema, a threat to the federal/state binary that they define as federalism—singular. 

Gregory Ablavsky is the Marion Rice Kirkwood Professor of Law at Stanford Law School, and Professor of History (by courtesy) at Stanford University. You can reach him by e-mail at ablavsky@law.stanford.edu.