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)