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.