Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Creativity, Constraint and the Long Founding Moment
|
Thursday, August 01, 2024
Creativity, Constraint and the Long Founding Moment
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). Aaron Hall The Interbellum Constitution is a story of arguing over how to
operate the Union. Between the 1810s and 1850s, lawyers and judges described
and prescribed the practical workings of American federalism, especially around
the fulcrum of commerce. Their arguments were often not winning ones—some lost at
the U.S. Supreme Court; others were spurned by state authorities and elected
branches even when adopted by the federal judiciary; and many faded in the long
run of constitutional law. But Allison LaCroix listens to them carefully, and
urges that we should do the same, because jurists in their own time understood each
argument as a plausible account of the practical interface between governments,
peoples and goods in motion. These interpretations were meaning-making, engaged
in what LaCroix characterizes as “chart[ing] the maps of the American
constitutional sea” (5) in a kind of federalism-focused Age of Discovery.[1]
Through cases and collisions that drew out multiple visions of governing
authority distributed among multiple jurisdictions, LaCroix writes an
engrossing chronicle in which thinking and debating, not clear resolutions are
the point. Yet the book truly is a story.
Grounding alternative formulations of federalism in the professional and
familial lives of interbellum figures and the social context in which disputes
arose, LaCroix writes about constitutional interpretation as the intellectual
history of individuals, communities and generations. Together, all the “federalisms,
plural” (3) that they espoused give content to the Interbellum Constitution –
or perhaps an Interbellum Constitution. I say “an” rather that “the” to suggest
what I think is a simple but important feature of the book. LaCroix’s title newly
and powerfully names a period of constitutional history for study, and she
makes the case for its significance as a site of constitutional change and
innovation. The book does not exhaust the title; its account of federalism
debates is not the only history that can be told, not the only version of an
Interbellum Constitution that is possible. When others research the Interbellum
Constitution, and we may see another one. I have been writing a history of the rise of an
authoritative “Founding” in American constitutional life during the century
after ratification. For this reason, I am especially interested in LaCroix’s wonderful
book and will take this opportunity to discuss her overarching concept of a
“long founding moment” that threads through The Interbellum Constitution.
LaCroix argues that Americans of the
period “believed themselves to be living in… a ‘long founding moment.’” (9)
What did this entail? Tension. These Americans belonged to an “uneasy
generation” (27) who “exhibited an adolescent mix of bravado and anxiety.” (8)
On one hand, they felt obliged to be “faithful heirs” who showed due “reverence
for the political religion of the nation’s founding charters” (9); on the other
hand, they “were not mere passengers” (4) but producers of creative, innovative
arguments. It is this other hand, creativity within the structure of the
Constitution, that LaCroix seeks to recover and elaborate. Her formulation of a long founding moment is a
generative background framework for thinking about the specific arguments that unfold
in studies of “the practice of federalism” (20) and federalism in practice. It
frames the relationship between citizens and Constitution as a “dialogue with
their Revolutionary forbears” (207) in terms that suggest both meaningful constraint
and channeled capacity. While the long founding moment is cast broadly to sweep
in all Americans, it seems to have special application to jurists mediating the
space between the Constitution and constitutional questions in court. Indeed, I
want to know more about that application. Given the book’s focus on plausible legal
arguments, how did the structure of a long founding moment, of constraint and
capacity, shape the bounds of argumentative plausibility? With reference to
this moment, did rejected arguments reflect judgments that particular claims violated
those constraints (i.e. were too creative with respect to the founding)? I also wonder about the scope of this long founding
moment along multiple axes. How well does this concept describe constitutional
culture over time (the 1810s versus the 1850s); across subject matters of
dispute that differ in political salience (commerce power versus the Fugitive
Slave Law); and among different communities (lawyer-to-lawyer versus popular
partisan or sectional political mobilization)? In terms of chronology, fundamental
changes in the participants and fabric of constitutional culture over the
interbellum period suggest that a long founding moment, which presumably includes
the pre-interbellum years between 1791 and 1815, could not be coextensive with
that whole period. From my research, I would agree that a long founding moment
(defined by the absence of discrete, closed founding) endured until roughly
1820, but that a different order arose thereafter with a relationship to the
Founding defined by profound constraint. This question of chronology intersects
with the question of subject matter, as courtroom norms permitting creative
possibilities in construing the federal commerce power might have endured but
departed from quite different norms associated with debating slavery under the
Constitution. In turn, this subject matter distinction intersects with the
matter of community and forum. Except for chapters that engage with the
Nullification Crisis and the mixed legal and popular constitutional proceedings
surrounding Ableman v. Booth, LaCroix’s actors and voices speak about,
to or as courts. These South Carolina and Wisconsin events exemplify highly
mobilized popular constitutional politics (and in the latter case show a court
parroting popular constitutional ideas). Although certainly articulating
federalism claims, the vehement constitutional declamation of these events and
the broader category to which they belong demonstrate a meaningfully different
relationship to the founding: it is one of mobilization and justification
through defense of ascribed original commitments and understandings rather than
one worked out among jurists in the comparative seclusion of a courtroom. All
of this is to say that LaCroix’s long founding moment is an invaluable concept
for recognizing and analyzing constitutional discourse during the early
nineteenth century. But there is more to be done on understanding its specific
force and the scope of its explanatory viability. By its terms, a long founding moment might seem to
contemplate an ongoing creation as opposed to an event that belongs fully to
the past. But LaCroix’s concept, I think, implicitly takes an interesting
intermediate position. As I understand it, her long founding moment recognizes
that a founding had already occurred, but that interbellum Americans occupied a
special creative role and relationship with its own liminal temporality, one
that would expire once that long moment closed. For this blog post, I thought it could be interesting to
dive a bit deeper into this concept by revisiting one primary source from her
book. An early highlight of The
Interbellum Constitution comes in LaCroix’s immensely rich rendition of a
set of arguments over judicial federalism advanced in 1814 at the Virginia
Supreme Court in Hunter v. Martin, Devisee of Fairfax (which produced
the decision reversed in Martin v. Hunter’s Lessee). Here William Wirt, the
interbellum lawyer par excellence and the long founding moment
personified, tangled with a bench and bar of soon-to-be Old Republicans
aggrandizing state judicial authority. Wirt represented Phillip Martin, the devisee
whose interests were injured under the Virginia court’s view of governing law
but protected by the Supreme Court’s determination. LaCroix explains how Wirt
invoked records from the Virginia ratification convention as well as The
Federalist in contending against unreviewable state judicial power. In this
move, the book sees: “a fight to claim the authority of the founders. Even as
Mr. Madison’s war raged around them, the lawyers and judges in Richmond and
Washington battled to claim the imprimatur of founding father Madison’s
writings.” (55) As part of this fight, LaCroix notes that when Judge Spence
Roane rejected Wirt’s position, his opinion cited the state sovereignty-promoting
Report of 1800 (which his parenthetical citation notes is “commonly called
Madison’s Report”) by the Virginia legislature, showing that “Post-founding
Madison also had a place in the debate.” (55) That analysis makes immediate
sense. Yet I think the concept of a long founding moment invites us to take a
second look. The account seems right because Wirt’s act seems familiar; that is
what such an act would mean and do in a fully post-founding world in which the identity
and authority of materials and Madison had coalesced. But 1814 was not 1832 or
1859. Was there an “authority of the founders” to claim? Was Madison a
“founding father” at this juncture? A long founding moment suggests that we should be wary
of our own sense of the familiar on these matters. Inside the Virginia
courtroom, we can hear how claiming the founding in 1814 was an uncertain and
ultimately unsuccessful enterprise. First, it was unusual at the time for Wirt’s
documentary resources to be introduced in arguments, and I suspect that his
concurrent work authoring a biography of Patrick Henry may help explain the
convention citations. This Henry biography features very long recapitulations
and excerpts of disputes within the convention.[2]
Second, Madison’s identity in Virginia in 1814 was not the “father of the
Constitution” but rather that of a powerful Virginian politician, personally well-known
to the bench, an eminent Republican constitutional theorist, and the beleaguered
president of the national government. Wirt was indeed trying to make whatever local
persuasive authority Madison and those materials possessed work for him in
Richmond. Crucially, however, in the arguments of his opposing counsel and in Roane’s
invocation of the Report, we can see that premises about authority in
constitutional arguments may not hold within a long founding moment—and that there
was no commanding “authority of the founders” to claim in the way that would
become familiar later in the interbellum period. When Martin’s attorneys relied on the Federalist to
explain the Constitution, Hunter’s counsel, William Williams, refused to fight
for the same conceptual ground, or to adopt a posture of deference towards the
text. He attacked its authority in full: “I
deny the authority of that book. It was written by three persons to
induce the people to yield to the general government certain powers: and their
expositions of the constitution were merely their individual opinions…. These
newspaper essays were party writings intended to induce a sentiment favourable
to the ideas of the writers…. Again these letters were written prior to the
adoption of the constitution, and laid down constructions of it which many
considered as dangerous to the sovereignty of the states, and tending to introduce
a consolidated government.”[3] Attacking the Federalist with such language was a
choice. If doing so was a transgressive rejection of firmly established,
venerated authority, then Williams would likely not have done it, or the Virginia
Supreme Court would have made its displeasure at that norm-breaking known. Instead,
the court agreed with Williams and chastised Wirt’s presumptuousness, as
LaCroix notes. The court also refused to share the conceptual ground that
Wirt may have offered. Reasoning from structure, principle and their own
memories and sense of both ratification and post-ratification constitutional
debates, the court exhibited no appetite for the authority of founding fathers
to properly understand the Constitution. When Roane invoked the Virginia
legislature’s Report of 1800, that newer text’s authority was stronger
than that of The Federalist. This strength came not from Madison’s
personal authorship, but because this more recent text reflected understandings
honed through years of bitter debate and was affirmed by the state’s lawmakers.
It was their understanding, their authority. In later interbellum decades, many
Americans could incorporate the Report of 1800 into a single, revered founding
(a long founding!); but in 1814, that was hardly a plausible argument for the
Virginia Supreme Court. These dynamics show how unfamiliar a place LaCroix’s
long founding moment could be. In its courtrooms, authority was far less
settled and the founding itself was not clearly delineated. The Interbellum
Constitution, in its specific account of federalisms and in its broader
intellectual architecture, invites scholars to think about constitutionalism in
the early nineteenth-century on its own terms. In this regard, it is generative
like the constitutional era that it illuminates. Aaron Hall is Assistant
Professor of History at the University of Minnesota, Twin Cities. You can reach
him by e-mail at arhall@umn.edu.
[1] Grant Gilmore, The
Ages of American Law, 2nd ed. (New Haven, 2015), 17-36. [2] William Wirt, Sketches
of the Life of Patrick Henry (Philadelphia, 1817). [3] 6 American Law
Journal 313, 334 (1817)
|
Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |