Balkinization: Forging Constitutional Politics through the Interbellum Constitution

Forging Constitutional Politics through the Interbellum 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).

Simon Gilhooley

Alison LaCroix’s The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms argues against teleological accounts that see the Interbellum period as merely a precursor to Civil War or as a rehearsal for the federal-state binary that has come to inform twenty and twenty-first century understandings of federalism. LaCroix makes the case for regarding the Interbellum Constitution in its own historical terms – it is not a playing out of the Founding or the initial steps on the inevitable path to disunion. Moreover, it is not a hiatus between moments in which real constitutional law is being made but is itself a transformative era of American constitutional law and politics. I wholeheartedly agree with these commitments. In the following comments, I wish to reflect upon them in light of the rich and enriching account of the Interbellum Constitution that LaCroix provides. My thoughts can be grouped around two centers. The first concerns the development of constitutional politics within LaCroix’ s account. The second concerns the historicity of the complex narrative related here.

LaCroix does an incredible job of conjuring up an expansive depiction of the attempts to grapple with “federalism” in the Interbellum period. It is remarkable in its attention to locating the various attempts to navigate the implications of federalism in tangible spaces. From the neat civic square of the Cherokee Nation’s New Echota to Justice William Johnson Jr.’s cramped Charleston courtroom to the Supreme Court’s dark Capitol basement, LaCroix provides the reader with a strong sense of location that elevates and provides meaning to the debates over national, state, municipal, and popular authority. As the reader is transported from locale to locale and back again, the stakes and complexity of the issues at hand are brought to life, as is the impossibility of assessing them only in terms of elite debate.

Equally too, the book provides a sense of the historical figures themselves traversing the society, landscape, and competing authorities of the Interbellum Republic, and beyond it. Justice Johnson moves through Charleston society to occupy his Broad Street courtroom, but also shuttles between Charleston and Washington. William Wirt rides circuit in Maryland and Virginia before holding office in the Federal City, where upon he too shuttles between Washington and Baltimore. William Thompson, captain of the Emily, leaves Liverpool, pausing in Perth Amboy, NJ, on his way to New York. The complicated geographic lives of the figures discussed within the book mirrors and brings into the relief the multilayered and mutually-contesting structures of authority within and in response to which those actors sought to make sense of “union” as a constitutional ordering. This attention to individuals works to bolster the attention to space, providing for a rich and rewarding account that resists simplification or attempts to read modern conceptions of federalism back into the historical record.

These details give vibrancy to the contestations over the Interbellum Constitution. But the richness of the lives and spaces discussed here also illustrates how debates over that constitution escape the courtroom. As much as the figures here move geographically, they also move between the spheres of law, politics, and culture with ease and to advance interests that cut across such realms. At an initial level, for Marshall and Wirt, this can be seen in the relatively straight-forward professional shifts between the Cabinet and different facets of legal practice. For Pinckney, Douglass, and Boudinot, participation in the printed public sphere provides a mechanism for influencing constitutional development. However, that simple characterization does not do justice to the engagements narrated in The Interbellum Constitution. As LaCroix shows, Wirt is both a lawyer and politician, but he is also a man of letters, seeking to establish his reputation through Sketches of the Life and Character of Patrick Henry (1817). Pinckney arranges for the publication of The Quintessence of Long Speeches, Arranged as a Political Catechism, but also navigates the use of her house and family’s legacy in public demonstrations. Boudinot edits a national newspaper, but also seeks to manage his own image as a representative of the Cherokee. Few of the actors described here could be understood as containing their constitutional activity within a single field, and indeed are working towards specific outcomes through multiple channels. To an extent that behavior highlights the distance between their time and our own, in which a Supreme Court staffed by professional lawyers adjudicates the constitutional questions of the day, supported by professors housed in law schools whose journals supply possible answers. (Although, to be sure, the contemporary sphere of constitutional debate is not exhausted by that of the law, and the judiciary is far from insulated from political machinations).

It is possible to see in the complexity of the Interbellum Constitution the emergence of a variety of modes of constitutional politics. One framing of this Interbellum period, which LaCroix rightly resists, is as a half-life of the Founding, in which the implications of the constitutional text of 1787-88 are unfurled, and a predetermined constitutional meaning liquidated. Another interpretation though is to see in this period an attempt to construct constitutional politics as a series of practices that engage constitutional interpretation and practice, but which distinguishes the latter from the “normal” politics of the everyday. In place of Ackerman-esque moments of intervention, how can a people be continually present in constitutional debate but also “doing” a constitutional politics that is distinct from polarizing conflicts of partisan combat? And as a consequence, is it possible to have an energetic and robustly fought contestation over constitutional meaning without undermining the shared constitutional project to the point of its destruction? The complexity and interconnectedness of the period might be understood as creative attempts to generate such a constitutional politics, required but equally novel in a polity having established itself through “reflection and choice.”

If so, then the historical shadows of the Interbellum Constitution might fall in different ways. The reversion to federalism as a binary conflict of states versus federal authority and to the Supreme Court as the seat of constitutional interpretation represents one method of containing the destabilizing excesses of constitutional politics. The long post-World War Two period of American Politics, with its (relative) faith in the Court and in the compartmentalization of constitutional politics primarily as legal activity might not echo the period of 1815-1860 but it can be seen as a distinct response to simpler problems. But as that limited consensus erodes in the face of partisan polarization and the perceived delegitimization of the Court, might we find ourselves cast anew into the storm of an unconstrained constitutional politics. What would it (does it?) mean to see sub-State polities resist their States and reject the authority of the Supreme Court? How do we negotiate a shared constitutional meaning when the Court-as-adjudicator is no longer recognized? In such a moment, the fractious landscape of the Interbellum Constitution might provide resources and guidance for us to turn to. Johnson’s view of a tripartite contract of the People, the States, and the United States might offer one among many ways of rethinking our assumptions regarding constitutional union.

In the end, perhaps the ending of the Interbellum Constitution reflects a particular failure of constitutional politics – the constitution as a framework for federalism remained largely unchanged by the Civil War with the potential of the 13-15th Amendments largely muted following 1877. But the Civil War did change one important aspect of federalism insofar as it established the practical impossibility of disunion. The outer limits of acceptable federalism were defined by politics in the extreme, the “politics by other means” attributed to von Clausewitz. A turn away from reducing 1815-1860 to a States’ rights versus federal authority binary alleviates us of the temptation to see inevitability in the Civil War, but in resisting inevitability we are also encouraged to see that war as a stark failure of constitutional politics to address sectional tensions and moral failings without resort to disunion and bloodshed. And here is maybe the echo and challenge for our own times – how can we forge a constitutional politics that offers stability in the face of a politics that is increasingly polarized. To aiding this project, LaCroix’s work provides us with incalculable and timely value.

Simon Gilhooley is Associate Professor of Politics at Bard College. You can reach him by e-mail at sgilhool@bard.edu.

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