Inheriting the Constitution

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). 

Jonathan Gienapp

Never, it seems, has constitutional history been more relevant to U.S. constitutional law, and yet so much of that history remains unknown or misunderstood. The legal past is being asked to speak to the legal present, but those doing the asking are often in such a hurry to decipher the modern payoff that they fail to truly listen to what the past is saying. Alison LaCroix’s magisterial new book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms, is a monumental achievement, both in masterfully chronicling a neglected period of early U.S. constitutional history but also in serving as a powerful reminder of the virtues of historical patience. LaCroix does not settle for the easy or the familiar. Instead, she challenges us to see well-known cases and set pieces from an unfamiliar vantage, to place them alongside more obscure cases and characters, to relish peculiar arguments and formulations, all in order to reconstruct a dynamic constitutional world from the ground up that is far more interesting than the flattened one often found in contemporary jurisprudence. “To understand what was constitutionally possible in 1824,” LaCroix writes, “one must read deeply in 1824,” situating legal arguments “in the currents of their own moment, rather than lining them up in a path leading toward our own” (12-13). As ever, we learn more about our constitutional present when we are willing to dwell on the unfamiliar features of the constitutional past, taking it as we find it rather than hurriedly forcing it to speak directly to our own debates.

Among the most interesting themes developed in LaCroix’s book is how history weighed on constitutional interpreters as much then as now. Those currently ransacking early U.S. constitutional history for evidence of deeply rooted historical traditions might stop and reflect on how the people of that distant past—the people who wrote the laws, issued the legal decisions, and generated the constitutional arguments currently being used to guide modern constitutional law—themselves felt the weight of history. As we struggle to come to terms with the authority and role of history in our own constitutional lives, we might reflect on how earlier generations of American constitutionalists wrestled with a comparable predicament. We spend far more time looking at what they did in constitutional history than what they thought about constitutional history—how they themselves connected past to present and future. As LaCroix demonstrates, for interbellum Americans this was an omnipresent concern. Caught between the cathartic recognition that an unfinished constitutional ship was now in their hands and an urgent sense that the vessel they were left to pilot could only endure if they stuck to the course set by its original architects, they struggled to locate their own authority in American constitutional time.

The Interbellum Constitution is many things. It’s a sweeping history of constitutional debate and law between 1815 and 1861 (the years between the end of the War of 1812 and the onset of the Civil War). It’s an effort to rescue a neglected period of constitutional history often overshadowed by the more celebrated and scrutinized moments of initial constitutional founding and later constitutional reconstruction. It’s a study of how Americans between those founding epochs probed the nature of their union, and in particular the multiple layers of governmental authority that constituted it, generating a complex array of federalisms, far greater in variety “than today’s constitutional debate admits” (3). It’s an analysis of how commerce and slavery in particular—the traffic in goods and people—shaped the contours and boundaries of constitutional union and raised the recurring questions that drove so much constitutional development and breathed life into so many competing varieties of federalism. It’s a valiant attempt to capture constitutional history in motion—to show ideas and meanings in the process of being formulated and legal arguments making the world as much as reflecting it. It’s a thoroughgoing history of lawyers’ law, one that takes legal arguments in courtrooms deadly seriously, paying as much attention to litigation strategies and the plausible arguments that lost out as the official holdings handed down from the bench. At the same time, it’s a concerted effort to marry constitutional history from above and below—to place Supreme Court protagonists like John Marshall, William Wirt, and Joseph Story alongside constitutional outsiders like Maria Henrietta Pinckney, John Ross, and Sherman Booth. But perhaps ultimately, The Interbellum Constitution is a story about inheriting the Constitution—of how a rising cohort of Americans who succeeded the Founding generation took custody of the constitutional order and, in being the first to do so, laid the groundwork for how constitutional inheritance would itself work in the United States.

The book can be read as a rich meditation on that complex process of inheritance—of how Americans who had not been there at the Constitution’s birth looked both forwards and backwards: blazing ahead and creatively molding the Constitution into new shape while anxiously looking over their shoulder in hopes of maintaining touch with their forebears’ earlier designs. Across the interbellum era, Americans not only debated the Constitution, laid down vital precedents, and helped fashion the framework of constitutional law; they not only claimed that the Constitution carried certain meanings or led to certain results on federal power, state police power, Cherokee autonomy, or the fate of slavery; in a broader sense, they confronted the problem of constitutional inheritance itself. They were not necessarily the first to do so. From the moment the Constitution appeared, as I have explored in depth, Americans needed to make sense of how to carry the Constitution forward while remaining true to its spirit—a task that required them to think broadly about how the Constitution spoke to those entrusted with it, where it left them free to act, where it constrained their choices, and where it provided no guidance at all. But those earliest custodians were part of the cohort that framed the Constitution (in many instances, the same people who sat in the Federal Convention in Philadelphia or shaped the ratification debates fleshed out the Constitution in the first Congresses). And they enjoyed the benefit (or burden) of hearing whether the architects believed the nation was staying true to the guiding purpose of their design. What was novel about interbellum Americans is that they were the first cohort to do this on their own. They took charge of the Constitution as the last founders passed from the scene. They were not detached from that earlier generation, but it was clear they stood apart from it. They were, LaCroix writes, “an uneasy generation born during the Revolution and saddled with ensuring the survival of the republic” (27), that felt “themselves adrift as the founding generation died off” (29). And as inheritors, they felt the burden and wrestled with the challenge it presented—a challenge that, they might have fairly believed, was uniquely theirs and unlike anything prior Americans had faced. In an important sense, then, interbellum Americans were the first Americans to inherit the Constitution, and in so doing, face the problem of constitutional inheritance itself. They weren’t just left with the task of carrying the Constitution forward; they had to ponder what that act of inheritance entailed. In facing constitutional questions both old and new, they took measure of what about the Constitution was clear and what remained uncertain, what was needed to interpret it, and what was necessary to propel it forward. Where were they commanded to stay the course and where were they free to navigate for themselves? Where did they have to navigate for themselves, either because they were so commanded or because the commands were so opaque or non-existent as to leave them adrift? How much elaboration and alteration was not only consistent with the inheritance but perhaps essential to it? How would they know if they had kept the appropriate faith? Interbellum Americans were the first generations to confront these deep questions of constitutional life in earnest.

How they did so is striking. Inheriting the Constitution provoked conflicting feelings. Interbellum Americans exhibited, as LaCroix puts it, “an adolescent mix of bravado and anxiety” (9), of forward-looking innovation and backward-looking reverence. They were at once enthusiastic about piloting an unfinished ship into unchartered waters and desperate to honor the purposes of those who had left the scene. “They worried,” LaCroix notes, “that the meaning of the Constitution might be impossible for them to comprehend without their elders as guides and absent a mass of authorities to elucidate.” And yet they boldly “believed themselves to be living in” what LaCroix calls a “long founding moment” (9).

LaCroix is more eager to portray the bravado than the anxiety, the forward-looking innovation than the backwards-looking conservatism, the creation than the conservation. Throughout, LaCroix emphasizes how fundamentally interbellum Americans shaped the Constitution. They did not passively inherit another generation’s creation, she argues, but played their part in molding it into what it became. They were not “mere passengers” but “producers” (4-5). She invites us to see the whole period anew, as itself an epoch in the making of the Constitution. In so doing, she targets those who have denied this possibility, elevating the epochal constitutional moments of the so-called Founding and Second Founding as genuine moments of revolutionary constitutional creation and reconstruction while relegating the interbellum era to the lesser status of normal constitutionalism. By contrast, according to LaCroix, interbellum America was “intellectually and legally generative” (3) and bursting with “constitutional possibility” (15), in ways that push far beyond what the conventional narrative has ever allowed.

Interbellum Americans had little choice but to continue the founding moment they inherited. They had to figure out, LaCroix writes, how “to lay the fragile skein of the Constitution atop the messy conflicts that were already shifting beyond what the document’s drafters envisioned.” As much as the Founding generation had probed and sorted, there were “a set of complex and divisive questions that had deviled [them],” ones “that lay submerged beneath the smooth text of the Constitution” (27). These questions primarily focused on the nature of the American union and the distribution of power within it. The Founding generation, understanding that they lived in a world of overlapping jurisdictions and authorities and that some kind of federalism was inevitable, had attempted to solve the long-running solecism of imperium in imperio (a power within a power) by formulating a new theory of popular sovereignty, one that James Wilson memorably gave voice to during the ratification debates in dramatically claiming that neither the federal government nor the states would be sovereign under the proposed Constitution for Americans had disaggregated sovereignty from government and vested it exclusively in the people themselves. As ingenious as this move may have been, it failed to quell talk of sovereignty in governments (a form of constitutional discourse that has never gone away) nor did it explain what kind of people (the people of the United States or the peoples of the several states) were sovereign, and therefore could not easily explain which powers were vested in which levels of Americans governance. Nor, as LaCroix is at pains to stress, did the Founding generation clarify, much less settle, the matter of concurrent power (the problem that is arguably the dominant motif of LaCroix’s whole study). Even if Alexander Hamilton broached the subject in The Federalist, much like Wilson’s efforts to clarify sovereignty in the union offered at this early stage, this theoretical venture, however sophisticated and useful, raised more questions than it answered. Whether federalism would be defined by “constant negotiation” or “sharp line-drawing” (11) remained to be seen. Federalism was open-ended. And that was not just true of how power was distributed and exercised but also the variety of credible authorities that could wield it. Just as concurrent power-sharing was taken seriously in a way it no longer is, so too did interbellum Americans often look beyond a tidy federal-state binary by recognizing distinctively local authorities that operated alongside the more familiar forms of American government. Lawyers and jurists of the time “did not understand themselves to be making an all-or-nothing choice between federal and state power,” LaCroix stresses. Such “a binary state-federal opposition need not be the only style of American federalism” (158).

There were, then, “multiple distinct species of federalism” (88), LaCroix stresses. The possibilities were varied and vast and the “Constitution provided no clear delineation” (8). Consequently, it did not take long to realize that “the tidy but vague boxes that the founders had created to contain the different sources of government power were collapsing” (9). The relentless forces of commercial life, meanwhile, invested these thorny issues of overlapping regulation with fresh urgency. During a time of great economic change and release, boom and bust, connection and movement, commercial life took on heightened constitutional significance. It was, as LaCroix puts it, “an era of constitutional maximalism,” in which prosaic legal fights over the movement and regulation of goods and people quickly turned into larger struggles over the structure and distribution of authority under an uncertain Constitution.

LaCroix’s book is a masterful tour of the “variety of interbellum federalisms” (165) that sprouted from the changing social and economic world of early nineteenth-century America, one that takes especially seriously once-legitimate possibilities that cease to resonate in today’s legal world. Where prior scholars have lumped, she splits. The results are as rich as they are illuminating, documenting a thick maze of jurisdictional multiplicity and its attendant legal justifications that was, often out of necessity, inventive and generative more than it was derivative. We find, for instance, Justice William Johnson claiming that the Constitution was not a compact among sovereign states, as orthodox Jeffersonians had insisted, but rather a “tripartite contract” (60) between the United States, the individual states, and the people. Where he, and Attorney General William Wirt, believed that the Supreme Court had been established to manage conflicts between these parties, other jurists, like William Cabell, denied that the Constitution recognized any such umpire. Or in Gibbons v. Ogden, the iconic Marshall Court case that tackled the Commerce Power and is the subject of one of LaCroix’s most valuable discussions, we find many more distinct efforts to map the boundaries of federal and state power than could possibly be contained within the neat federal-versus-state binary that has tended to predominate in discussions of the case: these include what LaCroix calls the strong exclusive-power view (that federal power over commerce among the states was exclusive and supreme); the collision view (that federal power over commerce among the states was supreme but not necessarily exclusive); the police-power view (that federal power over commerce among the states was exclusive but not supreme); and the concurrent power view (that federal power over commerce among the states was neither exclusive nor supreme). When it came to Native removal, meanwhile, and the creative legal efforts of the Cherokee Nation’s leaders to defend their sovereignty, the American federal union was imagined as “a nation within a state within a nation,” which LaCroix characterizes as “fractal federalism” (247). Or finally, as debates in South Carolina in the 1820s or Wisconsin in the 1850s reveal, during this period federal power was not always aligned with the cause of freedom nor was state and local power consistently aligned with the cause of slavery. In Ableman v. Booth in 1859, for example, Wisconsin challenged federal power in the name of state autonomy when it stood against the Fugitive Slave Act. Two years later, that state’s citizens would ironically “take up arms for the Union in the name of states’ rights” (427). As LaCroix shows, little about interbellum federalism could be reduced to simple legal formulations that followed from simple political motivations.

Unlocking the mysteries of early federalism, LaCroix demonstrates, ultimately required getting clear on the nature of the union—its constituent parts and animating spirit—which necessarily took interpreters beyond the bare confines of constitutional text. She rightfully notes that union was a “talismanic phrase” (48) that dominated debates, since its importance was unquestioned yet its general contours remained so uncertain. Some thought the Constitution was “synonymous with the Constitution”; others thought it was “embodied in the general government”; while still others thought it was “a balanced and aspirational entity” outside of either (48-49). As LaCroix shows so vividly, in disputes over steamboats, brigs, indigenous lands, and enslaved fugitives, disagreement could unfold along multiple lines at once, as claims on the Constitution, and the meaning of its discrete provisions, transformed into debates over the nature of the union that Constitution at once constituted, represented, and interacted with. As long as the nature of union was uncertain, the Constitution would be too, for the Constitution could not stand apart from union. The nature of the union and the Constitution were inextricably intertwined and the project of sorting out that fraught relationship necessarily fell to interbellum Americans.

With uncertainties as fundamental as these in the air, interbellum Americans did more than “meekly liquidat[e] the text” (3) of the Constitution, LaCroix insists. In making this claim, she challenges those legal interpreters (including Supreme Court justices) who have recently latched onto the concept of liquidation to marry originalism to certain kinds of post-ratification practice. By LaCroix’s telling, interbellum Americans did more than liquidate or flesh out a mostly finished Constitution. Because they had to “struggl[e] with problems the founders had had to gloss over” (27) and because the Constitution was “far more than text alone” (10), the task was far broader and deeper than the narrower modern debates over liquidation capture.

By so emphasizing their creativity, the intellectual ferment they unleashed, and the novelty and change it fueled, LaCroix is less eager to emphasize interbellum Americans’ backwards-looking angst. While she assuredly recognizes it—noting that they hoped to “remain true to a founding spirit that was rapidly vanishing into the past” (27) and “worried like anxious adolescents about measuring up to their Revolutionary forbears” (80)—one wonders if this posture wasn’t as definitive of the era as the adventurous and creative impulses that take a starring role in LaCroix’s account. Recent work by Aaron Hall and Simon Gilhooley has detailed how antebellum constitutional discourse came to be fixated on the authority of the Founding moment. And Hall’s forthcoming book, likely to be as monumental in scale and significance as LaCroix’s, will painstakingly detail how antebellum Americans came to venerate the Founding and invest it with unrivaled power. Michael Vorenberg’s essential study of the origins of the Thirteenth Amendment, meanwhile, describes how Americans had become so convinced of the Constitution’s rigidity that it took a revolution in constitutional thinking to revive the notion that the framers’ original work might be remade. In the realm of high constitutional argument, figures like John Marshall and Roger Taney often grounded their interpretations in historical claims about the Constitution’s original intent and purpose. While these interbellum arguments no more picked out a timeless originalism than they did a timeless federalism (something I argue at length in my own forthcoming book), it remains striking how often Americans of this epoch nervously looked backward toward the progenitors of their inheritance.

At times, LaCroix’s claims sit uneasily with such arguments. But perhaps they are two sides of the same coin. What LaCroix convincingly shows is that all this backward-looking veneration developed alongside innovative constitutional thinking. Constitutional argument was not frozen. But it’s unclear if the same can be said of the constitutional consciousness of those generating it. LaCroix characterizes interbellum America as an era of “self-conscious creativity,” but perhaps its inhabitants were at war with themselves more than this description suggests. They often denied innovation as they rushed into it. As they invented new conceptions of federalism, union, and concurrent power, they often claimed to be honoring that which came before. As they innovated, they increasingly spoke a robust language of constitutional fidelity and restoration. Practically, they marched forward with their inheritance, pounding it into new shapes. But rhetorically, they often claimed to be respecting what it had always been. This perception can be found in LaCroix’s captivating account of two Charlestonians, William Johnson and Maria Henrietta Pinckney, and their rival efforts to consciously claim their shared Revolutionary inheritance for constitutional purposes (perhaps most vividly captured in Johnson’s excavation of the roots of Charleston’s Liberty Tree, a portion of which he sent to Thomas Jefferson in 1817). It can also be glimpsed in William Wirt’s Sketches of the Life and Character of Patrick Henry, published in 1817, which he wrote as part of the “mania” (27) for Revolutionary biographies dominant at the time “in the hope of rekindling th[e] spirit” (46) of a founding moment that was receding into the past. In speaking so often of restoration, perhaps interbellum Americans like Johnson, Pinckney, and Wirt helped mask the innovation and change they assuredly made.

Interbellum Americans were, LaCroix rightly notes, anxious about their inheritance. They recognized the daunting constitutional challenges before them. As she so compellingly shows, they tackled them with ingenuity and fervor. But in defending their innovative work, they often fell back on the weight of history, denying their own agency and undermining the force of their own constitutional actions in the process. Like others across the American constitutional tradition, they obscured the change they made through contrived narratives of continuity and consistency. “[B]y dint of their constitutional creativity,” LaCroix writes, “they became the grown-ups” (80). No doubt they were forced to take command of an uncertain constitutional system, and through the necessarily innovative choices that followed, they exceeded the narrow parameters of constitutional stewardship. But when pressed, they seemed less sure that they had done what LaCroix shows they very much had. They were often daring in deed if conservative in justification. When they marched forwards they often looked backwards. Interbellum Americans helped create the Constitution while often denying that they had.

The story of early constitutional inheritance, and its anxious mix of constitutional audacity and insecurity, holds lessons for our current age. Rather than looking only at what interbellum Americans argued, we ought to consider how they navigated their fraught relationship to constitutional time. LaCroix’s dazzling book helps us do just this. One of its recurring themes is that earlier constitutional arguments look much different when situated in a deeper historical context. That includes interbellum Americans’ ambivalent posture toward the Constitution they inherited. That struggle did not end with them. In helping to first write that anxious script, interbellum Americans had perhaps their most lasting impact.

Jonathan Gienapp is Associate Professor of History and Law at Stanford University. He can be reached at jgienapp@stanford.edu.