For the Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024).
Anna Law
Thank
you to the Balkinization organizers for inviting me to reflect on The
Interbellum Constitution. Congratulations to Professor LaCroix. The
Interbellum Constitution: Union, Commerce, Slavery, in the Age of Federalisms
is insightful, original, and thought provoking. Works of history make interventions
by tapping new sources, interpreting known sources in a different light, and/or
synthesizing the monographs of other scholars. LaCroix has done all of these
and folded in doctrinal analysis of Supreme Court and circuit court federalism
decisions. The result is a rich account
of why cases had specific outcomes, an exploration of the range of
plausible legal arguments, and an analysis of the configuration of national and
state/local power across multiple policy areas. As a fellow traveler studying
federalism history, I have been eagerly awaiting this book. It did not
disappoint.
A federal system provides three possibilities of dividing power a) national control, b) state management, or c) concurrent jurisdiction. As The Interbellum Constitution underscores, which level of government is assigned to what subject matter had huge impact on people’s lives. The most graphic example is the 80,000 Native Americans in the Southeast who were displaced in the 1830s from their ancestral lands after Georgia hounded the federal government into funding and staffing a violent mass deportation. (Chapter 7) But the Constitution, apart from creating a federal system, is silent on broad swaths of subject matters and which government has jurisdiction. In the interbellum era, 1815-1861, and now, politics of each era, not the constitutional text, has defined the location of the line between national and state power.
The story LaCroix tells is not one that could be conveyed with doctrinal analysis alone. The federal courts and their judges/justices are but one political actor in the American political system. The courts and their personnel are constituted by their political, social, and economic environments even as their legal decisions also created the lived realities of those affected by their rulings. Going beyond the doctrinal development in each area of law, LaCroix explains why landmark legal opinions were decided the way they were given the influences of the era, not just what was decided.
The Interbellum Constitution made me think about how historians and American Political Development (APD) political scientists take overlapping approaches to studying a common set of questions and the benefits and drawbacks of each. Where does federal power end and state/local power begin? In what subject matters do both levels of government share power concurrently? Why? These are timeless questions that animate US federalism.
Historians and American Political Development political scientists periodize differently because they are focusing on different things. With apologies to Milton Grodzins, author of the original federalism cake analogy, think of periodizing as cutting a cake. Imagine a layer cake with three tiers of cake separated by frosting. The cake represents a research topic. There is more than one method to slice a layer cake, even though the conventual way is to cut it vertically. One could carve the cake horizontally, vertically, or even diagonally. Each choice would yield a different ratio of cake to frosting and distinct look at the same cake. The Interbellum Constitution slices into federalism history by tackling an understudied period, the time between the War of 1812 and the Civil War, which apparently historians regard as the equivalent of “flyover country” where nothing important happened. (pg. 10)
US historians periodize in many ways, with beginning and end points of era defined and contested depending on who is periodizing. Roughly, the periods are the Revolution and Confederation (1776-1789), the early republic (1783-1815), national expansion (1815-1880) and Civil War and Reconstruction eras (1861 to 1877). Historians also tend to specialize in specific eras. However they choose to cut time, historians specialize in an era to gain mastery of the “assumptions, values, and logics that framed a very different mental universe of those living in a different time and place” as Jonathan Gienapp described. The Interbellum Constitution is exemplary in demonstrating what the values and assumptions and especially at laying out the many alternative and plausible theories of federalism at the time.
A potential drawback for any scholar doing historical research focusing so closely on a specific era is that one may focus on individual leaves on a tree and miss the forest. That is, when one narrows one’s chronological scope, one could become convinced of the great importance of an era or an event and not appreciate broader trends or cyclical occurrences that span multiple time periods. (h/t to David Waldstreicher who I had a generative conversation about this topic with 2022.)
Instead of specializing in an era, American Political Development scholars typically research and write about larger blocks of time than historians and periodize in ways that historians may not. APD scholars are searching for patterns in the evolution of an institution (e.g. political parties, the US bureaucracy) or public policy area (e.g. immigration, social welfare). APD scholars look for periods of stasis and rapid change sparked by watershed moments (like the Civil War). These “punctuated equilibrium” points, a concept borrowed from evolutionary biology, in a policy area or institution’s evolution mark durable shift to a distinct stage of development. An example is FDR’s presidency, and its expansion of federal power is regarded by APD scholars (and historians) as the punctuated equilibrium point separating the old and modern presidency. In concentrating on locating points of punctuated equilibrium, APD scholars risk glossing over or missing the continuity of quotidian political, social, and economic realities that shape each historical era or the variations that occur between momentous events.
The Interbellum Constitution splits the difference. Because LaCroix delved into an under-studied period, she was able to uncover continuities in “commerce, concurrent power, and jurisdictional multiplicity” which is what contemporaries experienced as they crafted legal arguments based on those constraints. (pg. 3) Like APD scholars looking for institutions as a source of continuity and change, she shows how the Constitution constitutes even as its meanings were contested. During the interbellum era, multiple interpreters of constitutional meaning was frequent and common before the US fell into the current situation of Supreme Court-centered judicial review and frequent judicial supremacy.
An important corrective The Interbellum Constitution provides is that it refutes past characterizations of intergovernmental power. As a result of her not applying more recent federalism configurations retrospectively, LaCroix refutes the binary “dual federalism” that Edward Corwin wrote about in 1950. Dual federalism is an arrangement in which the federal government and the states/localities operated in their own spheres across subject matters. Corwin also characterized 19th century dual federalism as state versus federal conflict. The Interbellum Constitution shows that across policy areas, the relationship of the federal to the state and local governments was complex and not always one of conflict.
On the point of varied intergovernmental relationships, LaCroix’s findings are consistent with Grace Mallon’s excellent dissertation’s that showed the pattern of federal and state/local power in the early republic “cannot fully be captured either by the designation ‘dual federalism’ or by that of ‘co-operative federalism,’” but by “‘co-ordinated federalism’” which is the “constant mutual awareness and negotiation that characterized intergovernmental relations.” (pg. 25 of Mallon’s dissertation). LaCroix tells a similar story of relations between the national and state/local governments of one of “concurrence and negotiation, rather than as a stark, all-or-nothing contest between federal and state power.” (pg. 3) The binary of federal and state governments did not come about in multiple policy areas until after the Civil War.
During the early republic and the interbellum eras, the spheres of influence of the national, state, and local governments were under contestation and negotiation. Sometimes, the national government and states cooperated because the federal government lacked administrative capacity to implement its policies across the land and it needed states officials and local resources as force multipliers. The interbellum period was when the national government was developing, but had not yet developed, the enormous state capacity it has today. As a result, subject matter by subject matter and in case-by-case federalism questions about divisions of labor were being hashed out.
For better or for worse, the federal system is here to stay, and state versus federal battles continue today, albeit in other policy areas and not in slavery, commerce, or commercial union. It behooves us to understand from the past a) what motivated state/local actors and federal actors to try to preserve power for themselves, b) when and why states and the national government acquiesced to concurrent jurisdiction, c) and when or why states demanded federal intervention.
The cost of not knowing federalism history, particularly the rationales for specific intergovernmental configurations can have political effects by leading to erroneous conclusions that present day divisions of labor are normal, natural, and correct. As historical scholarship contributes to our collective memory, Jack Balkin reminds us that in our present day perception of a tradition, which is distinguishable from actual history, there are practical effects. He writes:
The Interbellum Constitution is an outstanding contribution to our collective memory and thus our constitutional memories. The historical motivations and rationales for exercises of federal authority, the belief of political powerless groups about how the Constitution can also protect them, and the outsized role that slavery played in states and individuals jealously guarding their rights to certain policy areas needs to be laid bare and understood as we debate similar issues today.
Anna O. Law is Herbert Kurz Chair in Constitutional Rights and Associate Professor at the City of New York, Brooklyn College. You can reach her at alaw [at] Brooklyn [dot] cuny [dot] edu. She thanks Ben Carp and Boris Heersink for their help with this essay.
A federal system provides three possibilities of dividing power a) national control, b) state management, or c) concurrent jurisdiction. As The Interbellum Constitution underscores, which level of government is assigned to what subject matter had huge impact on people’s lives. The most graphic example is the 80,000 Native Americans in the Southeast who were displaced in the 1830s from their ancestral lands after Georgia hounded the federal government into funding and staffing a violent mass deportation. (Chapter 7) But the Constitution, apart from creating a federal system, is silent on broad swaths of subject matters and which government has jurisdiction. In the interbellum era, 1815-1861, and now, politics of each era, not the constitutional text, has defined the location of the line between national and state power.
The story LaCroix tells is not one that could be conveyed with doctrinal analysis alone. The federal courts and their judges/justices are but one political actor in the American political system. The courts and their personnel are constituted by their political, social, and economic environments even as their legal decisions also created the lived realities of those affected by their rulings. Going beyond the doctrinal development in each area of law, LaCroix explains why landmark legal opinions were decided the way they were given the influences of the era, not just what was decided.
The Interbellum Constitution made me think about how historians and American Political Development (APD) political scientists take overlapping approaches to studying a common set of questions and the benefits and drawbacks of each. Where does federal power end and state/local power begin? In what subject matters do both levels of government share power concurrently? Why? These are timeless questions that animate US federalism.
Historians and American Political Development political scientists periodize differently because they are focusing on different things. With apologies to Milton Grodzins, author of the original federalism cake analogy, think of periodizing as cutting a cake. Imagine a layer cake with three tiers of cake separated by frosting. The cake represents a research topic. There is more than one method to slice a layer cake, even though the conventual way is to cut it vertically. One could carve the cake horizontally, vertically, or even diagonally. Each choice would yield a different ratio of cake to frosting and distinct look at the same cake. The Interbellum Constitution slices into federalism history by tackling an understudied period, the time between the War of 1812 and the Civil War, which apparently historians regard as the equivalent of “flyover country” where nothing important happened. (pg. 10)
US historians periodize in many ways, with beginning and end points of era defined and contested depending on who is periodizing. Roughly, the periods are the Revolution and Confederation (1776-1789), the early republic (1783-1815), national expansion (1815-1880) and Civil War and Reconstruction eras (1861 to 1877). Historians also tend to specialize in specific eras. However they choose to cut time, historians specialize in an era to gain mastery of the “assumptions, values, and logics that framed a very different mental universe of those living in a different time and place” as Jonathan Gienapp described. The Interbellum Constitution is exemplary in demonstrating what the values and assumptions and especially at laying out the many alternative and plausible theories of federalism at the time.
A potential drawback for any scholar doing historical research focusing so closely on a specific era is that one may focus on individual leaves on a tree and miss the forest. That is, when one narrows one’s chronological scope, one could become convinced of the great importance of an era or an event and not appreciate broader trends or cyclical occurrences that span multiple time periods. (h/t to David Waldstreicher who I had a generative conversation about this topic with 2022.)
Instead of specializing in an era, American Political Development scholars typically research and write about larger blocks of time than historians and periodize in ways that historians may not. APD scholars are searching for patterns in the evolution of an institution (e.g. political parties, the US bureaucracy) or public policy area (e.g. immigration, social welfare). APD scholars look for periods of stasis and rapid change sparked by watershed moments (like the Civil War). These “punctuated equilibrium” points, a concept borrowed from evolutionary biology, in a policy area or institution’s evolution mark durable shift to a distinct stage of development. An example is FDR’s presidency, and its expansion of federal power is regarded by APD scholars (and historians) as the punctuated equilibrium point separating the old and modern presidency. In concentrating on locating points of punctuated equilibrium, APD scholars risk glossing over or missing the continuity of quotidian political, social, and economic realities that shape each historical era or the variations that occur between momentous events.
The Interbellum Constitution splits the difference. Because LaCroix delved into an under-studied period, she was able to uncover continuities in “commerce, concurrent power, and jurisdictional multiplicity” which is what contemporaries experienced as they crafted legal arguments based on those constraints. (pg. 3) Like APD scholars looking for institutions as a source of continuity and change, she shows how the Constitution constitutes even as its meanings were contested. During the interbellum era, multiple interpreters of constitutional meaning was frequent and common before the US fell into the current situation of Supreme Court-centered judicial review and frequent judicial supremacy.
An important corrective The Interbellum Constitution provides is that it refutes past characterizations of intergovernmental power. As a result of her not applying more recent federalism configurations retrospectively, LaCroix refutes the binary “dual federalism” that Edward Corwin wrote about in 1950. Dual federalism is an arrangement in which the federal government and the states/localities operated in their own spheres across subject matters. Corwin also characterized 19th century dual federalism as state versus federal conflict. The Interbellum Constitution shows that across policy areas, the relationship of the federal to the state and local governments was complex and not always one of conflict.
On the point of varied intergovernmental relationships, LaCroix’s findings are consistent with Grace Mallon’s excellent dissertation’s that showed the pattern of federal and state/local power in the early republic “cannot fully be captured either by the designation ‘dual federalism’ or by that of ‘co-operative federalism,’” but by “‘co-ordinated federalism’” which is the “constant mutual awareness and negotiation that characterized intergovernmental relations.” (pg. 25 of Mallon’s dissertation). LaCroix tells a similar story of relations between the national and state/local governments of one of “concurrence and negotiation, rather than as a stark, all-or-nothing contest between federal and state power.” (pg. 3) The binary of federal and state governments did not come about in multiple policy areas until after the Civil War.
During the early republic and the interbellum eras, the spheres of influence of the national, state, and local governments were under contestation and negotiation. Sometimes, the national government and states cooperated because the federal government lacked administrative capacity to implement its policies across the land and it needed states officials and local resources as force multipliers. The interbellum period was when the national government was developing, but had not yet developed, the enormous state capacity it has today. As a result, subject matter by subject matter and in case-by-case federalism questions about divisions of labor were being hashed out.
***
For better or for worse, the federal system is here to stay, and state versus federal battles continue today, albeit in other policy areas and not in slavery, commerce, or commercial union. It behooves us to understand from the past a) what motivated state/local actors and federal actors to try to preserve power for themselves, b) when and why states and the national government acquiesced to concurrent jurisdiction, c) and when or why states demanded federal intervention.
The cost of not knowing federalism history, particularly the rationales for specific intergovernmental configurations can have political effects by leading to erroneous conclusions that present day divisions of labor are normal, natural, and correct. As historical scholarship contributes to our collective memory, Jack Balkin reminds us that in our present day perception of a tradition, which is distinguishable from actual history, there are practical effects. He writes:
Memory (and erasure) are important to the construction of tradition because they affect how much we actually remember about the past. If we describe a tradition only in general or abstract terms, or if we know nothing about its origins, it has the presumption of moral authority. But as soon as we begin to remember distasteful facts about how and why past practices developed and continued over time, the moral authority of the past threatens to evaporate.At stake now is how we individually and as a nation square our collective constitutional memories with our understandings of present-day intergovernmental contests for power in citizenship and immigration, abortion and reproductive rights, LGBTQ rights, to name a few salient policy areas.
The Interbellum Constitution is an outstanding contribution to our collective memory and thus our constitutional memories. The historical motivations and rationales for exercises of federal authority, the belief of political powerless groups about how the Constitution can also protect them, and the outsized role that slavery played in states and individuals jealously guarding their rights to certain policy areas needs to be laid bare and understood as we debate similar issues today.
Anna O. Law is Herbert Kurz Chair in Constitutional Rights and Associate Professor at the City of New York, Brooklyn College. You can reach her at alaw [at] Brooklyn [dot] cuny [dot] edu. She thanks Ben Carp and Boris Heersink for their help with this essay.