The Creativity and Tragedy of Interbellum Federalisms

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).

Evelyn Atkinson

I come to Alison LaCroix’s The Interbellum Constitution from an unusual vantage point. I first encountered the “interbellum constitution” nearly a decade ago as a second-year history graduate student in LaCroix’s seminar at the University of Chicago Law School.  Without exaggeration, the class shaped my conception of what it meant to be a legal academic and law professor.  LaCroix’s teaching embodied the marriage of good pedagogy and brilliant scholarship.  She opened the class by saying, “I’m starting a project about the Constitution between the War of 1812 and the Civil War, and I need your help.” As we worked through the primary sources together, she listened carefully to our ideas and offered her own analysis humbly and thoughtfully: “Here’s what I’m thinking this means, what do you all think?” We were with LaCroix on a journey of discovery.  We saw legal history methodology at work in real time, and we were part of the crew.

            That summer I was LaCroix’s research assistant as what would become The Interbellum Constitution took shape.  I spent hours combing through decades of the Southern periodical DeBow’s Review, summarizing all the different ways Southern elites conceived of “commerce.” What a world this revealed! Pride in the Southern slave economy, coupled with anxiety about the region’s dependence on the North; excitement over the countless technological advancements in infrastructure and agriculture; ambition to further extend the horizon of the expanding republic.  Should they invade Central America? What was the best route for a railroad to the Pacific? How independent should the South’s economy be? And on and on.  I still remember the article about brooms.  This editorial inveighed against the fact that all the necessities of life were imported from the North – even brooms.  The South could at least make its own brooms, the writer implored. How hard was it to tie some sticks together?

            What was this world that merited a tirade against brooms? The Interbellum Constitution shows us.  Although the brooms didn’t make it into the manuscript, LaCroix draws on details like this to bring interbellum constitutional law to life.  The book exposes the messy reality of how constitutional philosophers struggled to apply the Founders’ metaphysical Constitution to concrete conflicts.   Emerging from the dust of the American Revolution, this period was not a dead zone in political thought, as it has previously been portrayed. It was a crucible in which the future of the United States was actively being forged. 

Through detailed personal histories of individual thinkers, The Interbellum Constitution highlights the intoxicating possibilities of the federalist project, as well as the tragedies that resulted from roads not taken. As LaCroix convincingly shows, context matters. The book is grounded in the lives of particular individuals, who constructed their constitutional philosophies in response to their own unique political, social, economic, and cultural circumstances. As LaCroix illustrates, this was a moment of incandescent imagination, wracking anxiety, and endless possibility. The ideas of these thinkers ricocheted around the central question of the American experiment: what was federalism? For these individuals, this was not an abstract question; it was one on which their livelihoods, their identities, even their lives depended. 

Out of the cauldron of political thought emerged multiple competing “federalisms.”  In the interbellum world, a federalism that recognized an Indian nation within a state within a nation was just as feasible as one that bowed to the power of state courts to disregard Supreme Court rulings, and of cities to regulate international commerce.  The federalism envisioned by a Southern political matriarch and philosopher was as reasonable as that of a Protestant, New-England educated leader of the Cherokee Nation, which was just as much a possibility as that of a self-emancipated Black intellectual or a white slaveholding man in a prestigious governmental position.  (Although elite white men are the demographic of thinkers on whom the relatively few legal histories of this period have traditionally focused, they were far from the only constitutional philosophers, as The Interbellum Constitution shows.)

The book presents itself as an intellectual history, but it is more than that. The narrative collapses the distinction between intellectual history, legal history, social history, and even family history (given what we learn about the intimate familial connections between so many of the major players).  All of these angles of historical inquiry, we realize, are necessary to understand the central question of how federalism developed in the first half-century of the American republic. The resulting chronicle offers sophisticated analyses of legal arguments while simultaneously making real the fragile humanity of the individuals involved. I was near tears at the end of Chapter 7 when (spoiler) Cherokee leader Elias Boudinot is assassinated; not just because of his tragic fall but also because his vision of a “fractal federalism,” in which a sovereign Cherokee Nation existed in harmony with the federal and state governments, was forever gone. It is no small feat for a book about federalism to make you cry.

If I were to offer one criticism of the book, it would be the periodization.  The “interbellum” designation is important, but I would suggest that the first “bellum” is not the War of 1812, but the Napoleonic Wars, which stretched from 1799-1815.  The developing Atlantic economy and political legitimacy of the United States suffered mightily during this period.  Although the young nation professed neutrality, war ships bearing British, French, and allied flags relentlessly plundered American vessels, seizing cargo and impressing or imprisoning seamen.  Thomas Jefferson’s attempt to assert the country’s global economic power through the Embargo Act of 1807 failed miserably, devastating American commerce while leaving Britain and France unfazed.  Repeated challenges to the first Bank of the United States, and the bank’s demise at the hands of Congress in 1811, shook the foundations of the national economy. Cases like Bank of the United States v. Deveaux (1809) and ongoing conflicts with Native nations on the Western frontier challenged federal jurisdiction over questions that implicated state sovereignty. The contours of the debates over “union, commerce, and slavery” that The Interbellum Constitution so finely details, I would argue, took shape in this turmoil of the turn of the nineteenth century. (To be fair, however, this critique actually highlights a contribution; periodization is always a source of sparring among historians, and with The Interbellum Constitution we now have a newly-designated era to squabble over.)

This book will undoubtedly change the way constitutional law professors teach federal structure.  There is no longer any excuse for Gibbons v. Ogden, Worcester v. Georgia, New York v. Miln, and the other canonical federalism cases to put 1L students to sleep. Rather, relying on LaCroix’s meticulous storytelling, we can use these cases to illuminate the roads not taken as well as the basis for the constitutional structure that ultimately emerged.  In so doing, we can also underscore the radical, systematic undermining of that structure by the current Supreme Court. 

Evelyn Atkinson is the Charles E. Lugenbuhl Associate Professor of Law at Tulane Law School. She can be reached at eatkinson1@tulane.edu.