For the Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024).
Connor M. Ewing
Introduction
In his recent book, The Federal Contract, Stephen Tierney
makes the provocative observation that “the origins of the Constitution of the
United States are viewed today as ‘federal’ only through a retrospective prism”
(9). At least as an intellectual conceptualization, he continues, federalism
developed “not by reference to what the American constitution was intended to
be, but by what it became” (ibid.).
It is no coincidence that Tierney proceeds
to cite Alison LaCroix’s 2011 book, The Ideological Origins of American Federalism, in support of
this point. There she argues that the emergence of American federalism “should
be understood primarily as an ideological development,” centred on the “belief
that multiple independent levels of government could legitimately exist within
a single polity, and that such an arrangement was not a defect to be lamented
but a virtue to be celebrated” (6). On LaCroix’s telling, the creation of the
Constitution was marked by the embrace of “a normative vision of multilayered
government” (10) predicated on a subject-matter division of political
authority.
With The Interbellum Constitution, LaCroix moves from the origins of the federal idea to the consequences of its constitutionalization. She persuasively shows that, in the decades between the conclusion of the War of 1812 and the onset of the Civil War, federalism was not an it but a they. There was not a single operative definition—much less consensus theory—of American union, but an evolving set of interpretations, frames, and resolutions oriented toward negotiating the tensions posed by jurisdictional multiplicity and claims of concurrent power. “Interbellum constitutional law,” LaCroix writes, “was understood by contemporaries to be an ongoing process of writing, speaking, and interpreting” (10).
Among much else, The Interbellum
Constitution confirms LaCroix’s place among the best writers in legal
history. Far from an incidental feature of the book, the deft prose styling and
confident, yet unobtrusive, authorial voice are integral features of one of the
book’s central lessons. As a result of the jurisdictional multiplicity
characteristic of American politics, the construction of constitutional meaning
and negotiation of attendant constitutional conflicts occurred not only—or even
principally—in the chambers of Congress or the opinions of courts; they also
occurred in the infinitely varied circumstances of political, social, and
economic life structured by the Constitution.
The particularities of these circumstances
are thus essential to a full account of how (what would come to be called)
federalism shaped—and was, in turn, shaped by—the relations, interests, and
exigencies of American politics between 1815 and 1861. So in addition to adding
colour and verve to the narrative, the thicket of filial and matrimonial
relations that characterized South Carolina’s planter elite is revealed as the
essential context in which jurisdictional multiplicity was navigated and its
meaning elucidated. Similarly, the web of civic associations, newspapers, and
philanthropists engaged with the Cherokee Nation’s efforts to protect the
integrity of both law and land proves to be a key feature of the discursive
landscape in which Elias Boudinot (among others) articulated a vision of Native
sovereignty within the context of American union.
Telling such complex stories is certainly
not without its risks. Reading the early chapters of The Interbellum
Constitution, one might be tempted to wonder how much these individual
episodes can really tell us about the character of American federalism as such
during this period. (This temptation may, admittedly, increase with one’s
professional proximity to the social sciences.) But with each passing chapter
it becomes clear that the details of early episodes often reemerge later,
variously facilitating or constraining other actors’ attempts to vindicate the
authority claims of the government on whose behalf they speak.
In this respect, The Interbellum Constitution is a richly layered work that repays close attention, as well as the occasional detour back to previous chapters to recall the nuances of an important-again argument or precedent. Here, too, one finds a deep connection between form and substance. The layered narrative mirrors the layered development of American federalism in the decades between the Constitution’s creation and the Civil War, as episodes of jurisdictional friction reverberated both geographically and temporally. The book, like the constitutional order it depicts, is a palimpsest, with later developments contending with what came before even as they supplant, refract, and rework that inheritance.
Against the
Mythology of Prolepsis
The Interbellum Constitution is bookended by
allusions to the danger of what Quentin Skinner called “the mythology of
prolepsis.” In his seminal 1969 article “Meaning and Understanding in the History of Ideas,” Skinner wrote that
this “confusion” is characterized by “the conflation of the necessary asymmetry
between the significance an observer may justifiably claim to find in a given
statement or other action and the meaning of that action itself” (23). On this
understanding, proleptic interpretation entails imbuing historical events,
actions, utterances, and texts with meaning or significance only supplied by
later developments. According to this “teleological form of explanation,”
Skinner writes, “the action has to await the future to await its meaning” (24).
For LaCroix, the future development that
distorts interpretations of early constitutional history is the federal-state
binary—the conventional constitutional framework in which American federalism
consists of “the federal government versus the states” in a “zero-sum relationship”
(6). While this binary would emerge after the Civil War, constitutional
discourse in the first half of the nineteenth century was characterized by
“nonbinary federalism—a view of the federal-state relationship as one of
concurrence and negotiation, rather than as a stark, all-or-nothing contest
between federal and state power” (3; cf. esp. 158, 249-250, 335, and 345-348).
LaCroix argues that retrojecting the
federal-state binary onto early American history causes us to misunderstand
both the debates of the period and the broader dynamics of constitutional
change. The price of this proleptic interpretation is the ability to perceive
what she terms the Interbellum Constitution, “a set of widely shared legal and
political principles, combined with a thoroughgoing commitment to investing
meaning in those principles through debate” (3).
Attune to the perils of prolepsis, LaCroix
enables us to see interbellum politics on their own terms, as a series of
events that needn’t await the future to be intelligible. In distinct ways, each
of the substantive chapters demonstrates the insufficiency of the conventional
account, documenting how multiple entities were jostling for authority, how
different analytical frames were deployed to render the constitutional order
both coherent and stable, and how concurrent power was the watchword of
northern and southern states alike.
Perhaps most significantly in this regard,
LaCroix demonstrates that nullification and states’ rights were hardly the
exclusive province of southern states bent on protecting the racial domination
and hierarchy undergirding their “peculiar institution.” Pace William
Riker—who (in)famously argued that, “if in the United States one disapproves of
racism, one should disapprove of federalism”—LaCroix reveals how state
power was wielded in service of abolition and Black freedom. As she shows
particularly clearly in her accounts of The Brig Wilson and the Passenger
Cases (ch. 2) and the response of Wisconsin state courts to federal
enforcement of the 1850 Fugitive Slave Act (ch. 9), “the valence of federal
power in the interbellum period did not necessarily run toward freedom, and the
embrace of state authority did not always serve racial subordination” (11; cf.
378).
For this reason, LaCroix’s book, along with Sean Beienburg’s Progressive States’ Rights, presents a serious objection to arguments that associate federal power with the liberal—and states’ rights with the illiberal—tradition in American political development. More broadly, The Interbellum Constitution is a forceful reminder that those engaging in historical analysis must be wary of confusing their own perspectives for those of the actors and episodes they seek to understand.
A Proleptic
Constitution?
As an historical-interpretive matter,
LaCroix (and Skinner) are undoubtedly correct. Grafting chronologically
subsequent meaning, categories, or concepts onto prior phenomena is hardly a
reliable method for understanding what specific historical developments meant
in the moment or what historical actors meant to do with particular speech
acts.
But prolepsis is a multifaceted phenomenon,
one that has been deployed in settings ranging from rhetoric and literary
analysis to psychology and memory studies. Perhaps, then, there is a second way
in which prolepsis might be relevant to the story LaCroix tells, one that while
consistent with her account of multiple federalisms in the interbellum period
also raises questions about her precise conception of constitutional union and
its relationship with subsequent development. Because The Interbellum
Constitution is grounded on an account of the Constitution forged at the
founding, the nature of the regime is directly relevant to the analysis LaCroix
presents.
Rather than being a feature of historical
interpretation, prolepsis might characterize the constitutional order itself.
To flesh out this second form of prolepsis, and to briefly summarize a longer argument, perhaps the
system of government inaugurated by the Constitution anticipates future
political development. Far from establishing a comprehensive or legally
determinate relationship between state and nation, the Constitution can be
understood to frame the processes (themselves subject to interpretation and
revision) through which the constitutive powers, institutions, and
relationships of American union would be given meaning. On this understanding,
changing authority relations are at the heart of the constitutional project.
This stands in stark contrast to more legalistic and deterministic accounts of
the Constitution, such as the one offered by the late Antonin Scalia when he claimed
that the “whole purpose” of a
constitution “is to prevent
change.”
This is, after all, how both the advocates
and the opponents of the Constitution presented their arguments during
ratification. The central Anti-Federalist charge against the Constitution—that
it involved a consolidation of the states into a single, national
government—was not directed toward what the Constitution would do immediately
upon ratification, but what it would become over time. As the writer Brutus put it, presenting an
understanding expressed by virtually every one of the Constitution’s most
important critics, “[A]lthough the government reported by the convention does
not go to a perfect and entire consolidation, yet it approaches so near to it,
that it must, if executed, certainly and infallibly terminate in it.”
In contrast, for many Federalists the
developmental tendencies of the Constitution were evidence of both its
prospects for success and its fidelity to republican principles. In the most
systematic such account, Publius depicted how national authority could expand
as a result of stable and effective administration. After arguing that (1) the new national
government would be administered at least as well as—and likely much better
than—the state governments and (2) that “confidence
in and obedience to a government will commonly be proportioned to the goodness
or badness of its administration,” he observed that attempts by
either level of government “to enlarge its
sphere of jurisdiction at the expense of the other…should be supposed to depend
on the sentiments and sanction of their common constituents.” Mediated by
popular dispositions toward state and federal governance, governmental
performance would be the determinant of the distribution of authority. While
national authority was meaningfully limited by the contingent configuration of
administrative capacity and popular sentiment at the founding, those were
precisely the things that, according to many Federalists, the Constitution was
directed toward transforming.
One needn’t adopt the ungainly jargon of
“prolepsis” to grasp the basic point here. Fundamental differences between the
states precluded the codification of a comprehensive federal-state relationship
at the founding, leaving the elaboration of that relationship to the political
processes the Constitution would structure. Over time, the relationships among
the constitutive governments would reflect the accumulated consequences of
iterated elaborations. For Federalists, this was a virtue of the proposed
Constitution; for Anti-Federalists, the principal ground of opposition. Aspects
of such an interpretation feature in scholarly accounts as disparate as those
offered by Jacob Levy and Patrick Deneen. Moreover, it is
consistent with the founding generation’s markedly dynamic
and fluid conception of constitutionalism, as described in Jonathan Gienapp’s recent work.
Like the chapters of The Interbellum
Constitution, these founding accounts of constitutional development are
rooted in the character of the union established by the Constitution. But here
LaCroix’s account of the relationship between state and nation seems
importantly more specific. The Interbellum Constitution, like Ideological
Origins, emphasizes a “subject-matter vision of sovereignty” (251) centred
on “treaties, money, war, post offices” (8 and 250; see also 27). This,
however, risks mistaking powers for authority—the means of governance for its
end. While domains of authority can be inferred from powers that are granted
and prohibited, nowhere in the Constitution is the subject-matter of national
authority exhaustively set forth.
The line dividing national from state
authority would seem to better track the distinction between general and
particular (or local) interests. But again, that line was not codified
textually; rather its elucidation was left to future politics, with the
institutional and procedural design of those politics occupying both the text
of the Constitution and the attention of the delegates at the Constitutional
Convention. It is precisely the lack of clarity concerning policy
authority in areas like commerce that, as The Interbellum Constitution explains,
facilitated Virginia’s and South Carolina’s efforts to regulate the movement of
non-whites and Massachusetts’ and New York’s attempts to tax alien migrants.
One is left wondering whether the account of constitutional union LaCroix offers might not entail more determinacy than the Constitution can bear, or, alternatively, if developments between the founding and the book’s starting point in 1815 somehow fixed what the Constitution had left in flux.
Assessing
Constitutional Development
Between the introduction and epilogue, each
chapter of The Interbellum Constitution ends with just enough analysis
to make the reader pause before delving into the next, pondering what to make
of the episode that was just relayed. Despite some intriguing suggestions, we
are never really presented with LaCroix’s full assessment of the arguments
advanced by the characters she brings to life. I suspect this is attributable
to the method called for by her overarching purpose, and thus can hardly be
considered a shortcoming of the book.
But at the same time, reconciling the
ideological origins of the federal idea with the consequences of its
constitutionalization requires that we confront the relationship between
constitutional foundations and constitutional development. All the more so if
those origins anticipated subsequent development. What, then, is the
relationship between the Constitution of the founding and the Interbellum
Constitution? More broadly, how should we assess the episodes of constitutional
meaning-making that LaCroix so effectively documents?
One option is that the politics of the
interbellum period are evidence of what Jeffrey Tulis and Nicole Mellow call a “constitutional
logic,” a developmental trajectory induced (though not determined) by the
conjunction of the Constitution’s institutional architecture and normative
commitments. This, however, does not seem to map well onto LaCroix’s account,
which entails far more contingency, greater diversity, and less predictability
than such a logic could accommodate. Indeed, because of these features The
Interbellum Constitution can be read to pose important objections to the
constitutional logic account.
A second option is that American union is a
constitutional disharmony in the sense described by Gary Jacobsohn—a site and source
of contestation over the commitments, coherence, and continuity of the
constitutional order. Thus understood, the relationship between state and
nation is a contested feature of American constitutional identity that both
structures and provokes conflict over the regime’s defining commitments and the
correspondence of those commitments to the underlying values of
constitutionalism. Unlike the constitutional logic account, the constitutional
disharmony interpretation would arguably leave a broader scope for constitutional
developments in tension with founding commitments or designs.
There are, of course, other options. I
suspect that LaCroix’s account of the relationship between constitutional
foundations and subsequent development cannot be easily captured by either of
these but rather stakes out distinctive ground that would benefit from further
elaboration.
A final point raised by the book concerns
the significance of the various forms of constitutional discourse over
the period LaCroix investigates. Specifically, I wonder about the relationship
between constitutional interpretations offered by judges and those advanced by
advocates like William Wirt, engaged citizens like Maria Henrietta Pinckney,
and activists like Sherman Booth.
To illustrate this point, we can look to McCulloch
v. Maryland, a case that, while (understandably) appearing only fleetingly
in The Interbellum Constitution, occasioned a reflection that is highly
relevant to the developments the book addresses. Writing to Spencer Roane in
September 1819, James Madison reflected on John Marshall’s
opinion for a unanimous Court:
It appears to me as
it does to you, that the occasion did not call for the general & abstract
doctrine interwoven with the decision on the particular case. I have always
supposed that the meaning of a law, and for a like reason, of a Constitution,
so far as it depends on Judicial interpretation, was to result from a course of
particular decisions, and not these from a previous and abstract comment on the
subject. The example in this instance tends to reverse the rule and forego the
illustration to be derived from a series of cases actually occurring for
adjudication.
The question here concerns the relationship between “general & abstract doctrine” and the constitutional meaning(s) of federalism. Madison seems to be flagging an important change in American constitutional politics, one concerning the method by and manner in which constitutional meaning is articulated. This development may also be relevant to the emergence of a conception of federalism marked more by line-drawing than continued negotiation, as well as the advent of new understandings of the relationship between the Constitution, constitutional meaning, and the (federal) judiciary. Whether or not any of this was Marshall’s intention is a further question worth pondering.
Conclusion
Brooding over The Interbellum
Constitution is a development that lies just beyond the book’s temporal
horizon: the federal-state binary, which we are told emerges only after the
Civil War. LaCroix also indicates that the episodes chronicled in The
Interbellum Constitution contribute to that emergence. The question that
naturally follows is how American federalism eventually came to be what we
moderns mistake it for always having been. Answering this question may require
combining the different analytical approaches deployed in the two books LaCroix
has written. The Interbellum Constitution makes a strong case that she
is uniquely suited to that challenge.
Connor M. Ewing is Assistant Professor of Political Science and Fellow of Trinity College at the University of Toronto. He can be contacted at connor.ewing@utoronto.ca.