The Interbellum Constitution On Its Own Terms

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).

Rachel A. Shelden

         The standard story of the period stretching from the 1810s to 1861 is one of impending doom. When historians and legal scholars consider these years, they tend to work from the end point—from a Constitution that could not withstand the increasing political fractures over slavery, eventually leading to the breakup of the union. It is undeniably difficult to separate the antebellum period from the civil war that followed as even a cursory survey of book titles and subtitles on the period indicates. (I am as guilty as anyone.[1]) Yet, when scholars focus on the coming disunion, the war’s causation looms as a teleological trap. To write a history of American politics and constitutionalism in the years between the War of 1812 and the Civil War is almost always to write a book about how and why the war came.

         Alison LaCroix’s The Interbellum Constitution shows just how much can be gained from taking this period on its own terms. LaCroix tells a story of contingency, problem solving, and creativity—a story that does not hinge on the war itself but instead explores how the people of what she calls the “interbellum era” grappled honestly with the nature and future of their union. In doing so, LaCroix does not minimize Americans’ concerns about disunion, nor does she ignore the very real threats they faced to their national order. Instead, her book emphasizes how central slavery and race were to various crises of the period. But LaCroix illustrates how these threats could not be separated from and were often worked out through a broader conversation about how political and constitutional authority could and should operate in the young nation.

         That broader conversation was anything but two-dimensional. As LaCroix explains, conflicts over the nature of the union could not be reduced to a binary fight between state and national power, nor was the U.S. government uniquely committed to freedom against a reactionary states’ rights regime. In these two points, LaCroix reiterates the conclusions of some of her previous work, in addition to many of the key insights of legal and political scholars over the past few decades. Led especially by Laura Edwards, historians have embraced a more complex picture of nineteenth-century American federalism that includes not just state and national levels of government but local governments as well.[2] Similarly, historians are far less likely today to paint the conflict over slavery as a struggle between southern states’ rights ideology and northern nationalism. The work of Kate Masur[3], Michael Woods[4], and Matthew Karp[5] is just a small sample of recent contributions to a body of scholarship that emphasizes how Northerners used state police powers to regulate their borders and made states’ rights claims against the southern “slave power,” while Southerners harnessed federal power in support of territorial expansion and protections for slavery.

         Building on this foundation, LaCroix’s book offers new and generative insights into interbellum debates over the distribution of power and authority in a society with many jurisdictions. Foremost among these insights is that constitutional thinking contained a wide range of possibilities for how governmental power might be divided, negotiated, and shared. There was no consensus among traditional nineteenth-century constituencies—particularly enslavers—about the best arrangement of political authority. To the contrary, Americans of all kinds theorized and explored a variety of different approaches to governance that might sustain a union characterized by poorly-defined boundaries of power.

         Not every political issue involved questions of jurisdictional authority. Yet, as LaCroix argues, in conflicts over commerce, migration, and slavery—three issues that both defined the period and the union itself—constitutional thinkers of the interbellum period explored the arguments for concurrent and exclusive authority. Read cynically, or backwards from the Civil War, the idea of concurrent power might be mistaken as a cover for state sovereignty. But LaCroix’s careful immersion in the era’s constitutional conversation on its own terms allows her to see the messy and creative debates at play. Here she introduces the reader to “largely, and wrongly, overlooked cases” in which members of the Supreme Court explored the possibility of concurrent power both in Washington and while riding circuit (11).

         Indeed, the circuit courts, where Supreme Court justices not only faced but lived at the intersection of federal, state, and local authority are a crucial site of exchange for many of the federalisms at the heart of The Interbellum Constitution. Chief Justice John Marshall’s first judicial exploration of the commerce power while riding circuit in Virginia, for example, offers an example of “ambivalent federalism.” In The Brig Wilson v. United States (1820), LaCroix shows us that Marshall faced overlapping state and federal law governing “persons of colour” aboard foreign ships; both the path the case took and Marshall’s decision reflected the complicated relationship between federal power and antislavery views, the limits on judicial authority, and especially the wide range of constitutional arguments in play. Similarly, Justice William Johnson adhered to a “federalism of the tripartite contract” in the South Carolina federal circuit case, Elkins v. Deliesseline (1823). In LaCroix’s telling, Johnson argued for a three-pronged agreement of power shared by the nation, the states, and the people in invalidating the state’s Negro Seamen Act, which had upset the balance of power among these three entities. A (somewhat implicit) point of these cases is that recognizing the importance of circuit riding is central to understanding the complex conversation about authority at the heart of the interbellum era.

         At the same time, LaCroix’s book does not focus entirely on Supreme Court justices or even the lawyers who argued the cases before them—though William Wirt plays a key role in the book as both a legal thinker and in building the office of the Attorney General. LaCroix is also interested in the conversation well beyond the courtroom, in the broader “constitutional discourse” of the era. So, we see Elias Boudinot arguing for the constitutional possibility of “fractal federalism”—a nation within a state within a nation—in order to maintain the sovereignty of the Cherokee nation within the state of Georgia. Meanwhile, Maria Henrietta Pinckney, the product of an elite South Carolina founding family, offers a “federalism of inheritance” based on her own interpretation of the American Revolution, an argument that becomes key to the state’s theory of nullification.

         LaCroix’s methodological choice to include an array of constitutional sources works particularly well because she presents them as in conversation with one another. She not only shows that these ideas existed but that they were taken up, reflected back, and reimagined. Still I found myself wondering about other argumentative sources—particularly constitutional reasoning in more traditionally “political” (rather than judicial) arenas. While LaCroix is sensitive to what makes this period different, the partisan political arena was so often the site of constitutional conflict in the interbellum era; the age of federalisms included partisan federalism, in which state and local party organizations were critically important, as several scholars have pointed out.[6] National party platforms in this period often made reference to commerce and slavery in the context of constitutional power,[7] but what kinds of arguments might state party conventions have made in their debates and platforms about the distribution of political authority? How might these arguments have shaped views about the union in both political and legal spaces?

         Similarly, the interbellum period featured other political power-sharing structures that seem ripe for analysis. In particular, state legislatures were known to instruct U.S. senators from their states to vote a particular way in Washington, most famously during debates over the Wilmot Proviso. How were these arguments presented and what was the theory of constitutional authority when senators ignored these instructions, as many of them did in voting for the so-called compromise of 1850? In other words, in an era of fierce debate over judicial legitimacy, when many Americans were more comfortable making their constitutional cases outside the courtroom, what did the theory and practice of various federalisms look like in other political spaces?

         To be sure, tackling the full constitutional conversation in the political arena would have been a tall order in a book already teeming with insights. The Interbellum Constitution, then, offers a starting point for scholars who want to better understand the contours of a period so different from our own. In taking up that challenge, historians should follow LaCroix’s lead in shedding the historiographical baggage that is eager to get us to the Civil War well before interbellum Americans knew they would arrive there.

         Rachel A. Shelden is an associate professor of history and director of the Richards Civil War Era Center at Penn State University. You can reach her by email at rshelden@psu.edu.