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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 The Complexity of American Federalism
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Friday, August 02, 2024
The Complexity of American Federalism
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). Christian G. Fritz Alison LaCroix’s insightful new book, The
Interbellum Constitution, builds on an often-overlooked fact: that
Americans living before the Civil War did not know they were part of an
“antebellum” period. That oversight has contributed to a conventional narrative
of constitutional history and doctrine during the first half of the
nineteenth-century that tends to read that history and doctrine backwards
through the lens of a war that contemporaries did not know would define them.
From this perspective, American constitutional history between 1815 and 1861
(the period between the end of the War of 1812 and the start of the Civil War
and that gives rise to the title of LaCroix’s book) is often depicted as
something of an inconsequential lull between the constitutionally significant
events of the framing of the Constitution and Reconstruction in the aftermath
of the Civil War. Considered “the flyover country of constitutional history,”
(10) events during this period have often been neglected and misunderstood,
overshadowed by what preceded and followed them.[1] Instead, LaCroix’s book demonstrates the
important and creative developments in constitutional thought, argument and
practice during the period of the Interbellum Constitution. In doing so she not
only upends much received wisdom about the constitutional history and doctrine
of the period, but identifies the existence of multiple “federalisms” that
emerged as Americans wrestled with understanding the nature of the Union and
interpreting the constitutional framework established by the Constitution. One
great achievement of LaCroix’s book is that it reclaims the legal and political
debates, discussions, and struggles of this interbellum period as an important
part of the narrative of American constitutional thought. LaCroix frames her study by noting that a
central contribution of the Federal Constitution to the American theory of
federalism was that some types of power belonged to the general government
(including such externally focused powers as declaring war and conducting
international affairs) while more locally directed powers (including the
traditional exercise of so-called “police” powers to regulate health, safety,
and welfare) belonged in the hands of the states. It quickly became evident
that it was difficult, if not impossible, to understand and interpret the
Constitution within the confines of a strict binary analysis of state versus
national powers. As she puts it, by 1815 “the most pressing political and legal
issues concerned situations in which federal and state power overlapped,
intermixed with a thicket of local power, and overlaid by the tendrils of
foreign affairs.” (27) For such questions, the Constitution provided “no clear
answers” and ultimately presented circumstances that gave rise to multiple “federalisms”
in an effort to resolve controversies and issues that involved more than simply
a contest between state versus national power. (27) As such, many political and
legal actors in the early nineteenth century believed themselves to be living
in “a long founding moment” during which the federal-state relationship was
taking shape and still open to debate. (9) Illustrative of such complexity were the
on-going struggles over the scope of congressional authority under the Commerce
Clause—be it among the States, with foreign Nations or with native Nations.
Nineteenth century commerce was inextricably connected with sea-going
transportation and the key arena for that commerce—ports—were “crucial sites at
which local, state, federal, and international authority converged and
collided.” (370) Under such circumstances a federalism limited to the binary
dynamic of state versus national power failed to capture what was actually
taking place, thus providing impetus to the emergence of multiple federalisms.
The idea of multiple federalisms offers a more apt description of the landscape
of the struggle and constitutional discourse between 1815 and 1861 that debated
not only the meaning of “commerce” under the Constitution, but also the nature
of the Union itself. LaCroix
identifies the idea of concurrent power and jurisdictional multiplicity at the
center of the Interbellum Constitution, thus displacing the binary theory of
constitutionalism in the conventional accounts. In addition to demonstrating a
far more complex dynamic at work than a struggle between national and state
power, LaCroix dispels another related aspect of the conventional
constitutional account. Namely, that the exercise of federal power through an
ideology of nationalism became associated with freedom and in particular with
limits on slavery while state power tended to gravitate toward the protection
of slavery and limits on freedom, and in particular the freedom of Black
people. In fact, The Interbellum Constitution demonstrates that federal
power was not inherently emancipatory nor was state power inevitably directed
toward subordination. Federal power was intrinsically “Janus-faced,” at times
employed to resist nullifiers and at other times enlisted to capture runaway
slaves. (26) Indeed, among the contributions of LaCroix’s work is the
corrective that the idea of states’ rights was necessarily in service of the
defense of slavery and white supremacy. While states’ rights often involved
slavery and white supremacy, states’ rights and state sovereignty were also
invoked to defend the rights of northern citizens to resist efforts to enforce
the Fugitive Slave laws. As LaCroix observes, “the content of states’ rights
depended on the particular state—and on the wishes of its legislature, courts,
and voters.” (347) Nothing illustrates the variable nature of interbellum
federalism better than the fact that within the span of the three years between
1859 and 1861, some states would secede in the name of states’ rights, while
other states that had defied federal authority over enforcement of the Fugitive
Slave laws would take up arms to defend the Union in the name of states’
rights. LaCroix is largely successful and convincing in
demonstrating “the variegated nature of constitutional thought” (164) and the
wide-ranging “landscape of constitutional possibility” (165) that characterized
the Interbellum Constitution. Yet, she accepts the assertion of some
contemporaries that there was only a binary choice to be made about the nature
of the Union that was exemplified in the famous senatorial debate between
Robert Hayne and Daniel Webster. Senator Hayne asserted that the Constitution
rested on a compact of sovereign states. In opposition, Senator Webster
contended that the Constitution’s authority came from one national people.
Calling the Constitution a “compact,” however, did not necessarily mean an
acceptance of Hayne’s position or that of later nullifiers, including essayist
Maria Henrietta Pinckney. Pinckney described the Constitution as “an agreement
between Sovereign States” (229) that was formed by “the States in their
Sovereign capacity” (231) and derided Webster for claiming the Constitution
established “a Government formed by the people, en masse, that is, by
the people collected into one nation.” (231) LaCroix correctly points out that both James
Madison and Thomas Jefferson used the word “compact” when they each
respectively drafted the Virginia and Kentucky Resolutions of 1798. (34) But
she erroneously assumes that such terminology necessarily implicated Hayne’s
and the later nullifiers’ understanding of the foundation of the Constitution
and that there was only one “compact theory.” (58 and 60) Madison disagreed
with both Hayne and Webster about the basis of the Constitution. For Madison,
the Constitution rested neither on sovereign states nor one national people but
instead was founded on the people of the states (importantly in the plural) “in
their highest sovereign capacity,” occupying what he later described as a
“middle ground” between Hayne’s and Webster’s positions.[2]
While some scholars have depicted the debate over the nature of the Union in
binary terms, careful studies have long identified and appreciated a conception
located between the sovereign states’ rights position of nullifiers and Webster’s
view of the Constitution as resting on a single national people.[3] However, LaCroix does a fine job of delineating
the views of U.S. Supreme Court Justice William Johnson, Jr. who described the
Constitution as a “tripartite contract among the people, the states, and the
United States.” (204). Johnson’s understanding was thus outside of the binary
choice advanced by Hayne and Webster and in that sense had more in common with
Madison’s middle ground. Indeed, LaCroix even describes Johnson’s political perspective
as a “middle position” between extreme views of Democrats and Federalists.
(174) Still, LaCroix embraces
conventional accounts of the Virginia and Kentucky Resolutions and the
Nullification Crisis that largely conflate interposition with nullification.
Failing to appreciate the distinct role interposition played in theory and
practice both before and after the 1798 Resolutions results in a lost
opportunity to delineate additional tensions relevant to the multiple
federalisms explored in The Interbellum Constitution.[4] Interposition
defined as sounding the alarm by states identifying perceived unconstitutional
acts of the federal government was—and is—a necessary resistance at the core of
our democracy. It is not identical to nullification. Undergirding LaCroix’s revisionist account are
a series of cases from the interbellum period, some well-known and others
lesser known, but her take on all of them sheds new light and meaning. The
cases examined include: Martin v. Hunter’s Lessee (1816), The Brig
Wilson v. the United States (1820), Gibbons v. Ogden (1821) (1824), Elkison
v. Deliesseline (1823), Cherokee Nation v. Georgia (1831), Worcester
v. Georgia (1832), Mayor, Aldermen, and Commonality of the City of New
York v. George Miln (1834) (1835) (1837), The Passenger Cases (1849),
and Ableman v. Booth (1855) (1859). This litany of cases is not meant to
imply that LaCroix offers a traditional doctrinal analysis of the
constitutional questions and principles raised by the controversies producing
these lawsuits. To say that she contextualizes the cases is a vast
understatement. In addition to providing social, political, economic, and
cultural context, LaCroix offers biographical and genealogical
connections—occasionally providing “the web of family and law” (318). Thus, she
offers a vivid sense of place and architecture within which the struggles,
debates, and arguments over constitutional understandings took place. Her
important focus on “producers of constitutional discourse” (9) allows her to
integrate the thinking and contributions of more than just lawyers and judges,
as for example, the role played by Maria Henrietta Pinckney, a prominent South
Carolinian who helped shape arguments justifying Nullification, or Elias
Boudinot, a newspaper editor and citizen of the Cherokee Nation who advocated
for the rights of his Nation, or Frederick Douglass, the famed abolitionist
orator. Combined with a narrative approach, The Interbellum Constitution provides
a richly textured and detailed portrait of time and place within which legal
ideas and principles were explored and debated as part of an ongoing political
and constitutional discourse set in motion by the Federal Constitution.
LaCroix’s book thus deals not only with constitutional arguments and principles
elaborated in judicial opinions, but how American constitutionalism was shaped
and experienced by people other than elite leaders of the bench and bar. The result of examining these cases in the
context of “the full argumentative panorama” (16) along with the wide array of
producers of constitutional discourse who actively contributed to the
constitutional debates during the period between 1815 and 1861 reveals a
starkly different picture of American federalism from the traditional binary
state-federal model. LaCroix’s careful and capacious analysis of the
Interbellum Constitution fully warrants her conclusion that in “both theory and
fact, the constitutional structure of the period was characterized by
jurisdictional multiplicity, concurrent power, an almost-obsessive focus on
commerce, and surprising valences of both federal and local authority.” (434). The
Interbellum Constitution magnificently complicates our understanding of
American federalism and reframes the history of the American constitutional tradition
before the Civil War. Christian G. Fritz is Professor of Law Emeritus
at the University of New Mexico School of Law. You can reach him by e-mail at fritz@law.unm.edu.
[1] LaCroix
is surely correct about the neglect accorded the “interbellum” period in
standard treatments of American constitutional law. Less accurate, however, is
her suggestion that scholars have largely overlooked the role of the people
during this period, depicting them as simply passive and uncreative
“passengers” with little impact on constitutional thought and practice. (2-3).
More than a few studies have explored the numerous invocations of popular
sovereignty and popular actions grounded on the people’s constituent authority.
See for example Jason Frank, Constituent Moments: Enacting the People in
Postrevolutionary America (2010); Ronald P. Formisano, For the People:
American Populist Moments from the Revolution to the 1850s (2008);
Christian G. Fritz, American Sovereigns: The People and America’s
Constitutional Tradition Before the Civil War (2008); Charles W. McCurdy, The
Anti-Rent Era in New York Law and Politics, 1839-1865 (2006); Larry D.
Kramer, The People Themselves: Popular Constitutionalism and Judicial Review
(2004). [2] Report
of 1800, The Papers of James Madison (William T. Hutchinson et al.,
eds), Vol. XVII:309; James Madison to Andrew Stevenson, November 27, 1830, Letters
and Other Writings of James Madison (William C. Rives and Philip R.
Fendall, eds.), Vol. IV:131. [3] For an
appreciation of the middle ground, see for example Keith E. Whittington, “The
Political Constitution of Federalism in Antebellum America: The Nullification
Debate as an Illustration of Informal Mechanisms of Constitutional Change,” 26 Publius:
The Journal of Federalism (1996), 1 at 14-17; David F. Ericson, “The
Nullification Crisis, American Republicanism, and the Force Bill Debate,” 61 Journal
of Southern History (1995), 249 at 252; Richard E. Ellis, The Union at
Risk: Jacksonian Democracy, States’ Rights, and the Nullification Crisis (1987),
11; Major L. Wilson, “ ‘Liberty and Union’: An Analysis of Three Concepts
Involved in the Nullification Controversy,” 33 Journal of Southern History (1967),
331-355. [4] See
Christian G. Fritz, Monitoring American Federalism: The History of State
Legislative Resistance (2023).
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